author: RAU, J.,

text:
    Warnick v. All Saints Episcopal Church

      Timothy M. Kolman and W Charles Sipio, for appellant.

      Stewart J. Greenleaf, Jr. and Mary E. Kohart, for appellees.
    April 15, 2014—
   RAU, J.,

I. STATEMENT OF THE CASE

This case involves the constitutional question of whether a civil court may interfere with how a church chooses its priest. Specifically, Father Jeremy M. Warnick (appellant) sued All Saints Episcopal Church, Charles E. Bennison (the Episcopal Bishop of Pennsylvania), and three All Saints congregants, challenging Bishop Bennison’s decision to revoke his license to minister in Pennsylvania, Bishop Bennison’s letter to the congregation explaining the decision and statements made by congregants about Father Warnick at a church meeting. The bishop’s decisions stemmed from congregants’ concerns about Father Warnick’s conduct which, if true, constituted conduct unbecoming of clergy. At an earlier church meeting, congregants had complained that Father Warnick was living in the rectory with a woman not his wife and that he posted sexual material on facebook. Father Warnick was paid through the end of his contract even though his license was revoked before the contract was set to expire.

Father Warnick filed a canonical complaint, pursuant to the procedures set forth by the Constitution and Canons of the Episcopal Church, appealing the bishop’s decision and challenging the bishop’s letter to the congregation explaining the decision. The diocese rejected his claims on all grounds. Father Warnick then filed this civil complaint, echoing the issues raised in his canonical complaint, challenging the bishop’s revocation of his license and claiming that the bishop’s and congregants’ statements made related to that decision were defamatory and interfered with his ability to find work with other Episcopal parishes.

The defendants (appellees) in this case are All Saints Episcopal Church (All Saints), Bishop of Pennsylvania Charles E. Bennison, and All Saints congregants and Vestry members Diane Cairns, Richard Craig, and Linda Colwell. Father Warnick raised four claims against all defendants: defamation (Count I), tortious interference with existing and prospective contractual relations (Count II), libel/slander (Count III), and civil conspiracy (Count V). He also raised a breach of contract claim against defendant all saints (Count IV).

Defendants moved for summary judgment on all claims. This court granted the motion for three independently sufficient reasons: (1) the first amendment’s deference and ministerial exception doctrines bar all claims; (2) Father Wamick’s claims fail as a matter of law in areas where there is no factual dispute; and (3) Father Warnick failed to show evidence essential to prove his claims, resting instead on mere allegations. Father Warnick appeals this court’s dismissal of his claims.

II. UNDISPUTED FACTS

All saints is a congregation of the Protestant Episcopal Church. (See defs.’mot. summ. j. ex. A, am. compl. ¶¶ 2-4.) The Episcopal Church is a hierarchical church governed by a constitution and canons that set forth specific requirements delineating the structure, administration, responsibilities, and procedures of its operations. (See defs.’ mot. summ. j. ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church; defs.’ mot. summ. j. ex. C, Constitution of the Episcopal Church.) As an ordained priest in the Episcopal Church Father Warnick consented to abide by the constitution and its canons including its structure of governance. (See defs.’ mot. summ. j. Ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church, at all saints 131; defs.’ mot. summ. j. ex. D, Warnick dep. 33:14-17, Aug. 22, 2013.) In addition, all priests agree to comply with the standards of conduct and are subject to discipline for a breach. (See defs.’ mot. summ. j. ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church, at All Saints 163.) The standards of conduct require that a priest not engage in “conduct unbecoming a member of the clergy.” (See defs.’ mot. summ. j. ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church, at All Saints 132 & 135.) Father Warnick has acknowledged that when he became an Episcopal priest, he subjected himself to Church discipline. (See defs.’ mot. summ. j. ex. D, Warnick dep. 33:14-27, Aug. 22, 2013.) He admits that the Canons state that Episcopal clergy “have by their vows at ordination accepted additional responsibilities and accountabilities for doctrine, discipline, worship and obedience.” (See defs.’ mot. summ. j. & PL’s answer in opp’n to defs.’ mot. summ. j. ¶ 8.)

At all relevant times, Charles E. Bennison was the bishop of the Episcopal Diocese of Pennsylvania. Under Canon law of the Episcopal Church, Bishop Bennison was the Ecclesiastical Authority for the Diocese of Pennsylvania and had the authority to select which priests would be licensed to preach. (See defs.’ mot. summ. j. ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church, at All Saints 75-76, 93, 98-99, 140; Defs.’ mot. summ. j. ex. D, Warnick dep. 113:7-12; 113:24-114:1; 114:9-12; 114:18-21; 115:2-6, Aug. 22, 2013.) Without such a license, a priest “shall” not preach. (See defs.’ mot. summ. j. ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church, Canon 111.9.6(a), at All Saints 98.) The bishop must agree before a church enters into any employment contract with a priest. (See defs.’ mot. summ. j. ex. D, Warnick dep. 115:2-6, Aug. 22,2013.) Moreover, Canon IV.7.3 provides for the ability of the bishop to restrict the ability of a priest to continue ministry:

“Sec. 3. If at any time the Bishop determines that a member of the clergy may have committed any offense (as defined by canon), or that the good order, welfare or safety of the church or any person or community may be threatened by that member of the clergy, the bishop Diocesan may, without prior notice or hearing, (a) place restrictions upon the exercise of the ministry of such member of the clergy or (b) place such member of the clergy on administrative leave.”

(See defs.’ mot. summ. j. ex. B, excerpts of Constitution & Canons of the Episcopal General Convention of the Episcopal Church, Canon IV.7.3, at all saints 140.)

Father Warnick was from the diocese of Arizona but the Bishop of the Diocese of Pennsylvania licensed him to minister in Pennsylvania. (See defs.’ mot. summ. j. ex. A, am. compl. ¶ 2.) Father Warnick had two one-year contracts with All Saints: January 2009 through January 2010 and January 2010 through January 2011. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶ 21.) Father Warnick understood that no permanency was attached to his position at All Saints. (See defs.’ mot. summ. j. ex. D, Warnick dep. 33:4-13, Aug. 22, 2013.)

Father Warnick has described himself as a “radical” priest. (See defs.’ mot. summ. j. ex. D, Warnick dep. 34:23-35:11, Aug. 22, 2013.) After arriving at All Saints, Father Warnick developed a plan to restructure the parish by allowing the existing, conservative congregation to receive part-time ministry while growing a new congregation interested in different, “contemporary” worship. It was his view that this was would address all saints’ financial difficulties and increase parish membership. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 28 & 29.) Father Warnick also disagreed with some congregants on how the congregation’s endowment fund should be used. (See defs.’ mot. summ. j. ex. D, Warnick dep. 39:2-12; 42:9-13, Aug. 22, 2013.) Some congregants complained that he was not accessible enough to parishioners and was not meeting his priestly obligations. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶ 33; defs.’ mot. summ. j. ex. D, Warnick dep. 42:9-13, Aug. 22, 2013.)

In 2009 Father Warnick posted on his facebook answers to a “sexual position quiz” where he identified various sexual positions. His Facebook was available to some 300 people including some associated with the Episcopal Church including at least one all saints parishioner. Eventually he removed it from his profile because he knew it was “probably something that could have the potential to upset people.” (See defs.’ mot. summ. j. ex. D, Warnick dep. 92:13-99:5, Aug. 22, 2013.) Also during 2009, although he was married and separated, he and another woman, Sarah Caswell, began living at each other’s houses (his house being the rectory) on several alternate weekends. (See defs.’ mot. summ. j. ex. D, Warnick dep. 75:19-77:13, Aug. 22, 2013.) Kirk Stevan Smith, the Bishop of Arizona (Father Warnick’s home diocese), advised him that such a living arrangement was not proper while he was still married to someone else, and that he should end any emotional relationship or physical contact with the woman not his wife until his divorce was final. (See defs.’ mot. summ. j. ex. FI, Bishop Smith’s letter to Father Warnick, Jun. 19, 2009.)

Father Wamick’s divorce was finalized in November 2009. (See defs.’ mot. summ. j. ex. D, Warnick dep. 211:12-18, Aug. 22,2013.) After the divorce, he and Sarah Caswell married, at a Methodist rather than an Episcopal church. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 47 & 48.) Father Warnick admits that he did not follow the Episcopal Canons on remarriage after divorce. (See defs.’ mot. summ. j. ex. D, Warnick dep. 87:16-19, Aug. 22, 2013.)

On November 1,2010, the Vestry voted at its meeting to recommend that All Saints maintain a part-time ministry. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶51.) Father Warnick claims that the vote to maintain a part-time ministry amounted to a vote to keep him on as a part-time priest, and that the vote gave rise to a valid employment agreement or contract between himself and All Saints, subject to Bishop Bennison’s approval. (Am. compl. ¶¶20-21.) Father Warnick claims that on November 8,2010, Ms. Cairns sent a letter and an email to Canon Jill Mathis, a representative of the diocese, stating that father Warnick was trying to overturn the Vestry vote choosing to have a part-time ministry. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 21.) Father Warnick claims that on November 22, 2010, Ms. Cairns emailed the bishop of Arizona with what he characterized as “numerous unfounded complaints.” (See id.)

On December 16, 2010, at a congregational meeting to discuss Father Warnick’s ideas for restructuring the parish, the bishop, the Vestry, and the parish’s congregants freely discussed their concerns, including father Warnick’s performance, or purported nonperformance, of duties, along with his Facebook posting and his living with one woman while married to another. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 54 & 55; defs.’ mot. summ. j. ex. D, Warnick dep. 130:6-15; 133:21-134:2, Aug. 22, 2013.)

Father Warnick claims that at that meeting Mr. Craig defamatorily said, “Jeremy posted inappropriate sexual material on Facebook. Sarah and Jeremy lived together in the rectory with Sarah’s children before they were married and without the knowledge of Jeremy’s ex-wife.” (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 23.) Father Warnick admits that posting sexual information on Facebook and living with a woman before marriage would be “conduct unbecoming of a member of the clergy” (See defs.’ mot. summ. j. ex. A, am. compl. ¶ 32), but he also admits that only an ecclesiastical court can make that determination about specific conduct. (See defs.’ mot. summ. j. ex. D, Warnick dep. 165:21-166:2, Aug. 22, 2013.)

After the meeting, Bishop Bennison, the Bishop of the Diocese of Pennsylvania, revoked Father Wamick’s license to minister anywhere in Pennsylvania and drafted a letter explaining his decision: concerns raised at the meeting would, if true, be conduct unbecoming of clergy — but canonical structures prohibited his investigating the truth or falsity of the allegations, because only the authority in Arizona, where Father Warnick remained canonically resident, could do so. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 62 & 63; defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.)

Father Warnick asserts that a portion of the letter Bishop Bennison drafted is defamatory:

“At the parish-wide meeting on December 16, a number of you expressed gratitude and esteem for Father Warnick, his preaching and pastoral care. But at the same time two specific accusations were made which, if true, would constitute conduct unbecoming a member of the clergy.
I am not now in a position to ascertain the truth or falsehood of the accusations. That is the responsibility of Father Warnick’s bishop, the Bishop of Arizona. Were Father Warnick canonically resident in the Diocese of Pennsylvania, I could temporarily inhibit his ministry until the Church could adjudge the veracity of the accusations. Because he is not canonically resident here, my only option is to revoke his license.”

(Defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.) Bishop Bennison did not mail the letter to parishioners; it was sent to Bob Lambert, a parishioner, whom the Bishop expected to send it out to the congregation. (See defs.’ mot. summ. j. ex. K, Caswell-Warnick dep. 31:6-8, Aug. 23, 2013.) Father Warnick and Ms. Caswell helped Mr. Lambert send the letter by stuffing the envelopes. (See defs.’ mot. summ. j. ex. K, Caswell-Warnick dep. 31:9-32:1, Aug. 23,2013.)

A few months later, on February 1,2011, Ms. Cairns sent an email to Mr. Lambert, a supporter of Father Warnick, which read, in part, “If you were paying attention at the meeting with Bishop Bennison, you would have noted that 20 people stated their dissatisfaction and that the Wamicks did in fact live together before marriage!” (See defs.’ mot. summ. j. ex. G, pi. ’s resp. to defs. ’ first set of interrogs., no. 21.) The next day, February 2, 2011, Ms. Colwell emailed Mr. Lambert and referred to the allegation that Father Warnick and Sarah Caswell were “living together” but clarified that “I am not saying it is true or not true.” (See defs.’ mot. summ. j. ex. M, Colwell email to Lambert.) She also stated in that email that she had been told Ms. Caswell’s children were enrolled in school in September 2009 and then rhetorically asked where the children lived between that time and December 2009. (See id.)

Father Warnick acknowledges that any renewal of his one-year contract could become effective only with the approval of the Bishop of the Diocese of Pennsylvania (see defs.’ mot. summ. j. ex. A, am. compl. ¶ 15), but he claims interference with various existing and potential contracts. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 7.) Although his license was revoked twenty-five days before his contract expired, he was paid for the entirety of his contract and was allowed to stay on in the rectory, with water and electricity paid by All Saints, for six months after the revocation. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 70 & 71.)

Father Warnick filed a canonical complaint against Bishop Bennison accusing him of abusing his discretion by revoking his license and thereafter failing to provide Father Warnick with assistance and mediation in the face of the accusations made against him at the congregational meeting; that complaint was dismissed on August 4,2011. (See defs.’ mot. summ. j. ex. O, appeal of intake officer’s initial dismissal in the matter of The Rev. Jeremy M. Warnick & The Rt. Rev. Charles E. Bennison, Jr. (Nov. 9, 2011)(original dismissal of complaint).) He appealed to the diocese; the appeal was rejected on December 26, 2011. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 75 & 77.) The rejection of the appeal outlines the canonical rules that govern the complaint and appeals processes. (See defs.’ mot. summ. j. ex. B, decision of the president of the disciplinary board for bishops.) It observes that, to a certain extent, “unbecoming conduct, like beauty, is ‘in the eye of the beholder,’” and that Father Warnick’s complaint and appeal accuse Bishop Bennison of conduct unbecoming of clergy. (Id.) The rejection also cites the canonical reasons for the dismissal of the complaint and the denial of the appeal. It says, “The canon directs the president to affirm or overrule a decision of dismissal by the intake officer within thirty (30) days (Title IV.6.6).” It further says, “[T]he complaint and the appeal fall under the provisions of Title IV.4.1(h)(8) which provides that ‘in exercising his or her ministry a member of the clergy shall...refrain from: ... any conduct unbecoming a member of the clergy.” It further quotes the canons:

“Title IV.3 provides that, ‘In order for any conduct or condition to be the subject of the provisions of this Title, the offense complained of must violate applicable provisions of Canon IV.3 or IV.4 and must be material and substantial or of clear and weighty importance to the ministry of the Church’ (emphasis added).”

(Id.)

After Father Wamick’s canonical complaint was unsuccessful, Father Warnick initiated this civil action on December 13, 2011, raising the same issues as the church already rejected. (See defs.’ mot. summ. j. ex. O, appeal of intake officer’s initial dismissal in the matter of The Rev. Jeremy M. Warnick & The Rt. Rev. Charles E. Bennison, Jr. (Nov.9, 2011) (original dismissal of complaint).)

III. LEGAL ANALYSIS AND CONCLUSIONS

A. The First Amendment bars all claims.

1. The Deference Rule and Ministerial Exception Apply in This Case.

The first words of the bill of rights say that “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. Amend. I. As these words relate to this case, “[b]oth Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 702 (2012). Specifically, the “Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” Id. at 703. Accordingly, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Id. at 704. Meddling in a church’s choice of priest would be “trespassing on sacred ground.” Gaston v. Diocese of Allentown, 712 A.2d 757, 761 (Pa. Super. Ct. 1998). To do so would impermissibly allow “Caesar [to] enter[ ] the Temple to decide what the Temple believes.” Presbytery of Beaver-Butler of United Presbyterian Church in U.S. v. Middlesex Presbyterian Church, 489 A.2d 1317, 1320 (Pa. 1985).

In this case, Father Warnick already appealed his termination to Episcopal authorities pursuant to the rules of the canonical process, and his appeal was denied. {See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 75 & 77). After not receiving the relief he sought from the episcopal church by whose authority and governance he agreed to be bound, Father Warnick now asks a secular civil court to override the ecclesiastical ruling.

The Supreme Court of Pennsylvania long ago described the importance of civil courts’ deference to ecclesiastical courts in ecclesiastical matters:

“The decisions of ecclesiastical courts, like those of every other judicial tribunal, are final; as they are the best judges of what constitutes an offence against the word of God, and the discipline of the church.
Any other than those courts must be incompetent judges of matters of faith, discipline and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve either religion or good morals.”

German Reformed Church v. Com. ex rel. Seibert, 3 Pa. 282, 282, 291 (1846).

And the Supreme Court of the United States held well over a century ago that

“whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.”

Watson v. Jones, 80 U.S. 679, 727 (1871).

This court’s entertaining any of Wamick’s claims would thus violate the “deference rule,” which the Supreme Court of the United States created in light of the first amendment. The deference rule prohibits unjustifiable intrusion by civil courts into the religious affairs of organized religions:

“All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.”

Watson, 80 U.S. at 729.

The Pennsylvania Supreme Court has laid out how the deference rule applies:

“(1) examine the elements of each of the plaintiff’s claims;
(2) identify any defenses forwarded by the defendant; and
(3) determine whether it is reasonably likely that, at trial, the fact-finder would ultimately be able to consider whether the parties carried their respective burdens as to every element of each of the plaintiff’s claims without ‘intruding into the sacred precincts.’”

Connor v. Archdiocese of Philadelphia, 975 A.2d 1084, 1103 (Pa. 2009). The court in Connor stated that the deference rule provides for a “ministerial exception” in the “special class of cases that involves the employment relationship between a religious institution and its ministerial employees in which the courts understandably are particularly reluctant to encroach on the institution’s decision-making process in selecting such employees.” Id. at 1108-09. “[F]ederal constitutional protection as part of the free exercise of religion against state interference” mandates that religious institutions have the right to select their own religious leaders. Id. at 1093 (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116(1952)).

The Supreme Court of the United States recently reaffirmed the importance of the ministerial exception and the deference that must be afforded to organized religions in their choice of clergy, making reference to both the free exercise and the establishment clauses of the first amendment:

“We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”

Hosanna-Tabor, 132 S. Ct. at 706. The court emphasized that “the authority to select and control who will minister to the faithful — a matter strictly ecclesiastical — is the church’s alone.” Id. at 709 (internal citation and quotation omitted).

Father Warnick’s tort and contract claims seek damages for movants’ frank debate about his suitability to minister to them and their resultant choice to discontinue his ministry at All Saints. The issues that triggered congregational conversations about revocation and the revocation of his license itself — his desire to change the worship style of the parish and the conflict this caused, congregants’ concerns about perceived nonperformance of priestly duties — undergird all of Father Wamick’s claims. It is hard to conceive of questions more appropriately left to the church itself than ecclesiastical matters related to a parish leader’s potentially refocusing the parish away from the “traditional episcopal experience.” (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 18.) It is questions such as these that it is not only most appropriate but also most necessary to apply the deference rule.

As the Supreme Court of Pennsylvania has observed, “The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.” Connor, 975 A.2d at 1109 (quoting Downs v. Roman Catholic Archbishop of Balt., 683 A.2d 808, 812-13 (Md. Ct. Spec. App. 1996)). Indeed, “the concern in ministerial exception cases is not with chilling just any speech by religious institutions but, rather, that which is necessary to make an informed decision about the selection and retention of their own personnel.” Id. at 1110. Bishop Bennison’s decision to end Father Warnick’s ministry and his restructuring plans, is exactly what the deference rule and ministerial exception are intended to shield from state intrusion.

2. The Deference Rule and Ministerial Exception Bar the Defamation Claims.

All of Father Warnick’s defamation claims are rooted in movants’ discussions of his ministry and their voicing of their displeasure. The defamation claim against Mr. Craig (a member of the Vestry) relates to concerns he expressed at the December 16, 2010, meeting about Father Wamick’s living arrangement with the woman he later married, and his Facebook activity. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 23.) The defamation claims against Ms. Colwell and Ms. Caims (also Vestry members) relate to their discussions about Father Wamick’s ministry before and after Father Warnick’s license was revoked. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 21; defs.’ mot. summ. j. ex. M, Colwell email to Lambert.) The defamation claim against Bishop Bennison is based on the congregational letter that explained why he revoked Father Wamick’s license. (Defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.)

If Father Warnick’s claims were to move forward, this court would not only have to invade the church’s process for choosing clergy, but also challenge the church’s understanding of its own Constitutions and Canons. The Pennsylvania Supreme Court has held that considering defamation claims involving a religious order’s clergy selection obviously violates the First Amendment’s deference rule and ministerial exception:

“When the conduct complained of occurs in the context of, or is germane to, a dispute over the plaintiff’s fitness or suitability to enter into or remain a part of the clergy [] [] it is difficult to see how the forbidden inquiry could be avoided. Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church. As the court observed in McClure v. Salvation Army, 460 F.2d 553, 558-59 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132, 34 L.Ed.2d 153 (1972): ‘The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.’”

Connor, 975 A.2d at 1109 (quoting Downs v. Roman Catholic Archbishop of Balt., 683 A.2d 808, 812-13 (Md. Ct. Spec. App. 1996)). The Pennsylvania Supreme Court observed that congregational discussions in choosing clergy especially merit the shield provided by the deference rule:

“[T]o allow as actionable church members’ comments about their church leaders made at church meetings would inhibit the free and open discourse essential to a religious institution’s selection of its minister. Such a result could chill expressions of dissatisfaction from church members and thereby intrude upon the autonomy of religious institutions to freely evaluate their choice and retention of religious leaders.”

Id. at 1110.

Father Warnick alleges that Mr. Craig’s statement, and other movants’ repetition thereof, is defamatory because such behavior, if true, would be conduct unbecoming — but Father Warnick admits that only an ecclesiastical court can make such a determination. “That [conduct unbecoming] is something that can only be determined through a trial process at this point in time in the Episcopal Church. . .. The canons are not clear.... They give general categories. ... There’s a canonical process that’s required to make that determination.” (See defs.’ mot. summ. j. ex. D, Warnick dep. 165:21-166:2; 168:12; 168:15; 168:22-24, Aug. 22, 2013; emphasis added.) Thus, Father Warnick himself thus acknowledges that this court would have to encroach on the Episcopal Church’s jurisdiction by interpreting Church Canons in order to assess the allegedly defamatory meaning of movants’ statements.

Further, because Church Canons bear on whether Bishop Bennison had jurisdiction to investigate the truth or falsity of the accusations against Father Warnick, in attempting to assess movants’ affirmative truth defense the court would again be improperly compelled to interpret canons and question church authorities’ interpretations regarding ecclesiastical matters. This court would also need to interpret the canons in order to assess whether the affirmative defense of privilege applied to the statements at issue.

3. The Deference Rule and Ministerial Exception Bar the Contract Claims.

Similarly, the contract and interference with contract claims relating to All Saints’ ending Father Warnick’s full-time ministry and choosing not to give him part-time ministiy are precluded from civil court analysis because of the deference rule and ministerial exception. Canonical and ecclesiastical discretion are at the core of church decisions over who can serve as a priest. Father Warnick acknowledges that an employment contract to be a priest could be entered into only with the bishop’s approval. (See defs.’ mot. summ. j. ex. A, am. compl. ¶ 15.) Church authorities’ and congregants’ communications about a priest’s continued ministry within a church also implicate canonical discretion and would require interpreting the canons in order to assess whether such communications were privileged. Moreover, as discussed more fully in Section B, neither a party to a contract nor any party’s agents can tortiously interfere with their own contracts. But in order to assess this claim, this court would have to decide whether the bishop can be found liable for interfering with alleged contracts — that is, whether he was a third party to those contracts or whether he had to approve those contracts himself; this would again require the court to interpret the canons.

Any such interpretation by this court of church law would be an unconstitutional incursion by the state into sacred precincts: the deference rule and the ministerial exception prohibit it, and all of Father Warnick’s claims are barred as a result.

4. Father Warnick Cites Nonbinding, Irrelevant Case Law in Support of His Argument that the Deference Rule and Ministerial Exception Do Not Apply.

Father Warnick argues that the decision of the Supreme Court of the United States in Hosanna-Tabor was limited to federal employment discrimination laws, and that after that decision came down some state courts outside Pennsylvania have allowed claims against churches to go forward notwithstanding. The Supreme Court’s decision in Hosanna-Tabor did not limit the deference rule and ministerial exception to federal employment discrimination law, and the cases Father Warnick cite are, besides being nonbinding in this jurisdiction, factually inapposite. Hosanna-Tabor expressed no view on whether the ministerial exception applies to contract and tort claims because those issues were not before the court.

Pennsylvania courts have clearly held that the ministerial exception applies to contract and defamation claims. See Connor, 975 A.2d at 1109; see also Mundie v. Christ Church of Christ, 987 A.2d 794, 802 (Pa. Super. Ct. 2009); Cooper v. Church of St. Benedict, 954 A.2d 1216, 1219 (Pa. Super. Ct. 2008) (the ministerial exception applies “to decisions made by religious institutions concerning employment of ministers”); Fassl v. Our Lady of Perpetual Help Roman Catholic Church, 2005 WL 2455253, at *7 (E.D. Pa. Oct. 5, 2005) (“The ministerial exception is not limited in application only to certain federal or state employment claims. Rather, because the ministerial exception is based on the first amendment, it may apply to any federal or state cause of action that would otherwise impinge on the church’s prerogative to choose its ministers.”).

Father Warnick pointed to a Connecticut trial court case that concerned a church’s failure to investigate, report, and supervise an employee priest who had been accused of sexual abuse of a child. Doe No. 2 v. Norwich Roman Catholic Diocesan Corp., 2013 WL 3871430 at *1 (Conn. Super. Ct. Jul. 8,2013) (unpublished). He cited that case for its observation, “The first amendment does not prevent courts from deciding secular civil disputes involving religious institutions when and for the reason that they require reference to religious matters.” Id. at *4 (quoting Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999)). In Doe, claims of failure to warn and negligent supervision of an allegedly abusive priest were allowed to go forward. Id. at *3. The Doe claims regarding a priest’s alleged sexual abuse of a child had nothing to do, as this case manifestly does, with selection of a minister or inquiry into church doctrine.

Father Warnick also cited a South Carolina Supreme Court case for the idea that a pastor’s defamation claim could go forward against a church. Banks v. St. Matthew Baptist Church, 2013 S.C. LEXIS 249 at *9-* 10 (S.C. Sept. 25, 2013). Banks did not involve the selection of a minister or anything pertaining to church doctrine; it had to do with a pastor accusing church trustees of engaging in financial impropriety. Indeed, the court stated that if the pastor had stated they had “violated church law,” the deference rule would in fact bar the defamation claim. Id. at *9.

These cases are not only nonbinding on this court; they are factually distinguishable and have no bearing whatsoever on this case. A civil court’s consideration of Father Wamick’s claims, which concern a church’s selection of its minister, would be “excessive entanglement into church matters” barred by the First Amendment. Mundie v. Christ Church of Christ, 987 A.2d 794, 802 (Pa. Super. Ct. 2009). Such consideration of any of his claims would intmde on sacred precincts. The deference rule and ministerial exception apply here, barring all of Father Wamick’s claims.

B. Even if the First Amendment did not bar all claims, Father Wamick’s claims fail as a matter of law.

A party may move for summary judgment “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report.” Pa.R.C.P. 1035.2(1). It is this court’s duty to determine whether, viewing the evidence in the light most favorable to Father Warnick, his allegations would constitute violations as a matter of law. Father Wamick’s claims fail as a matter of law because the undisputed evidence shows that necessary elements have not been shown for defamation, contract and civil conspiracy claims.

1. Defamation/Libel/Slander

The allegedly defamatory statements in this case do not constitute defamation because they are either true, incapable of defamatory meaning or opinion. A person bringing a defamation claim in Pennsylvania bears the burden of proving:

“(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.”

Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) (citing 42 Pa. cons. stat. ann. § 8343(a)). Whether a statement is capable of defamatory meaning is a question of law that the court must determine “in the first instance.” Bell v. Mayview State Hosp., 853 A.2d 1058, 1061-62 (Pa. Super. Ct. 2004). “If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial.” Livingston v. Murray, 612 A.2d 443, 446 (Pa. Super. Ct. 1992). An action in defamation “is based on a violation of the fundamental right of an individual to enjoy a reputation unimpaired by false and defamatory attacks.” Berg v. Consol. Freightways, Inc., 421 A.2d 831, 833 (Pa. Super. Ct. 1980). The law states that there is no defamation if the statements are true. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1985); Spain v. Vicente, 461 A.2d 833, 836 (Pa. Super. Ct. 1983). The offending statements must also have caused damage in order to sustain a claim: “It is not enough that the victim of the ‘slings and arrows of outrageous fortune’, be embarrassed or annoyed, he must have suffered that kind of harm which has grievously fractured his standing in the community of respectable society.” Scott-Taylor, Inc. v. Stokes, 229 A.2d 733, 734 (Pa. 1967).

And as for whether a statement can be construed as defamatory by innuendo:

“It is the duty of the court in all cases to determine whether the language used in the objectionable article could fairly and reasonably be construed to have the meaning imputed by the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff, and do not sustain the innuendo, the case should not be sent to a jury.”

Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944).

Bishop Bennison’s letter is not capable of defamatory meaning and is, at most, non-actionable opinion. Father Warnick objects to these, the second and third paragraphs of the letter:

“At the parish-wide meeting on December 16, a number of you expressed gratitude and esteem for Father Warnick, his preaching and pastoral care. But at the same time two specific accusations were made which, if true, would constitute conduct unbecoming a member of the clergy.
I am not now in a position to ascertain the truth or falsehood of the accusations. That is the responsibility of Father Wamick’s bishop, the Bishop of Arizona. Were Father Warnick canonically resident in the diocese of Pennsylvania, I could temporarily inhibit his ministry until the church could adjudge the veracity of the accusations. Because he is not canonically resident here, my only option is to revoke his license.”

(Defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.)

Even if the charges the bishop refers to but does not name were defamatory, simply observing that the accusations were made is not defamatory, especially because Father Warnick himself has alleged and acknowledges that the statements were actually made and would, if true, indeed constitute conduct unbecoming. {See defs.’ mot. summ. j. ex. A, am. compl. ¶¶ 31 & 32.) The letter does not reiterate or quote the allegedly defamatory statements, and it stresses that the bishop is not in a position to determine their alleged truth. (Defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.) There is nothing defamatory about the bishop’s stating that episcopal procedures prohibited him from investigating the accusations’ truth: his non-actionable opinion that he had no such authority stemmed from his interpretation of episcopal canons.

Moreover, the bishop’s letter cannot be construed as defamatory by innuendo, either — not without distorting its actual words: Father Warnick argued that the revocation of his license in the aftermath of the accusations referred to in the letter suggests that they were true, but that conclusion fails to account for context. The letter plainly states the license was revoked in accordance with ecclesiastical rules (“he is not canonically resident here”), and revocation was the only choice because the bishop lacked jurisdiction to assess the truth or falsity of the accusations. (Defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.) The context does not at all suggest that the bishop believed the accusations were true.

Furthermore, Father Warnick and Ms. Caswell helped an All Saints parishioner publish the letter. They understood that it was the bishop’s order that the letter be sent to the congregation, and they helped stuff the letter into envelopes to be sent to parishioners. (See defs.’ mot. summ. j. ex. K, Caswell-Warnick dep. 31:6-32:1, Aug. 23, 2013.) Father Warnick seeks to hold the bishop liable for publishing a defamatory statement that Father Warnick helped to publish.

Crucially, Father Warnick admits that Mr. Craig’s statement at the congregational meeting was true: he did take a Facebook sexual-position quiz, and he did live with Ms. Caswell before they were married and while he was still married to someone else. (See defs.’ mot. summ. j. ex. D, Warnick dep. 75:19-77:13; 92:13-99:5, Aug. 22,2013.) Referring to her staying at the rectory, he said, “Just to clarify, when I say times, I mean weekends. I mean, it was a time frame only over a weekend that she would have stayed.” (See defs.’ mot. summ. j. Ex. D, Warnick dep. 76:15-18, Aug. 22, 2013.) Referring to his staying with Ms. Caswell, he said, “I stayed in her home.” (See defs.’ mot. summ. j. ex. D, Warnick dep. 78:16, Aug. 22, 2013.) He acknowledged that these stays occurred “between early summer 2009 to December 21, 2009.” (See defs.’ mot. summ. j. ex. D, Warnick dep. 75:20-21, Aug. 22, 2013.) As for the sexual-position quiz, he said, “It was a quiz. It was something that I did for fun.” (See defs.’ mot. summ. j. ex. D, Warnick dep. 99:21-23, Aug. 22, 2013.) Because he thus concedes the truth, the defamation claim fails as a matter of law. Mr. Craig said: “Jeremy posted inappropriate sexual material on Facebook. Sarah and Jeremy lived together in the rectory with Sarah’s children before they were married and without the knowledge of Jeremy’s ex-wife.” (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 23.)

Father Warnick seeks to avoid the effect of his admission by torturing the plain meaning of the phrase “lived together.” Father Warnick’s regular stays at Ms. Caswell’s home, and Ms. Caswell’s regular stays at the rectory, clearly amount to “living together.” Father Warnick seeks somehow to parse the phrases “stay with” and “live together,” but they are the same thing. Where one lives is the place one resides, and “[residence...is ‘a factual place of abode’ evidenced by a person’s physical presence in a particular place.” Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 965 (Pa. Super. Ct. 2007). The presence need not be permanent; it may be marked merely by “habitual repetition.” Id. If one resides, or lives, at the same place as another — if one shares one’s physical presence with another in a particular place — one is “living together” with that other person. The unavoidable common-sense judgment of this court is that Father Warnick’s and Ms. Caswell’s admissions that they stayed at one another’s homes on multiple occasions over a considerable period of time lead to the conclusion that on the occasions that they stayed at each other’s homes, they were “living together.”

Father Warnick argues that the use of the phrase “living together” or “lived together” or “live together” implies, by way of “innuendo,” that he was carrying on “sexual relations” with Ms. Caswell at the time. (See pl.’s answer in opp’n to defs.’ mot. summ. j. ¶ 44.) This court found that this is not a fair or reasonable construction. See Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944) (holding that where the words do not sustain the purported innuendo, the case should not go to a jury).

As for the statements attributed to Ms. Cairns and Ms. Colwell, they are either not capable of defamatory meaning, non-actionable opinion, or true. As for Ms. Colwell, Father Warnick attributes defamatory meaning to an email she sent to one of his supporters. (See defs.’ mot. summ. j. ex. M, Colwell email to Lambert.) The email generally referenced “living together,” reiterating the statement made at the meeting, and stating, “I am not saying it is true or not true.” (See id.) She wrote she had been told that his future wife’s children were enrolled in school and rhetorically asked where the children had lived at the time of enrollment. (See id.) She did not say where she was told they were enrolled, and even if she had said they were enrolled in Philadelphia, that statement would not affect Father Warnick’s reputation. The rest of her email contains her non-actionable opinion about Father Warnick’s suitability for ministering to the parish.

Father Warnick also attributes three allegedly defamatory emails to Ms. Cairns. One email is only alleged to exist, but Father Warnick does not produce it; another email states Father Warnick was trying to overturn the Vestry vote deciding on a part-time ministry. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 21.) There is nothing defamatory about that. Another email, to one of Father Warnick’s supporters, said, “If you were paying attention at the meeting with Bishop Bennison, you would have noted that 20 people stated their dissatisfaction and that the Warnicks did in fact live together before marriage!” (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 21.) Father Warnick acknowledges that some parishioners expressed unhappiness with him at the meeting, and that Sarah Caswell and her children lived with him on some weekends in 2009 before he and Ms. Caswell were married. (See defs.’ mot. summ. j. ex. D, Warnick dep. 75:19-77:13; 130:6-15, Aug. 22, 2013.)

Because Father Warnick concedes the truth by acknowledging that he took the facebook quiz and lived with Sarah Caswell before they were married-and because none of the statements he points to are capable of defamatory meaning or are opinion — he failed to meet the elements of his defamation claims and this court was compelled to grant summary judgment on these claims in defendants’ favor.

2. Contract Claims

The elements for a claim of breach of contract are “1) the existence of a contract, including its essential terms; 2) a breach of a duty imposed by the contract; and 3) resultant damage.” Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1070 (Pa. Super. Ct. 2003). An enforceable contract is entered into when the following elements are met: “‘offer’, ‘acceptance’, ‘consideration’ or ‘mutual meeting of the minds.’” Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. Ct. 1993).

Father Warnick admits he was paid his entire salary, and allowed to live in the rectory, through the contract’s expiration. {See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 70 & 71.) Even if his dismissal, pursuant to the revocation of his license, had been a breach of the January 2010 contract, Father Warnick suffered no damages, a necessary element of the claim.

Although Father Warnick hoped to have a part-time contract in 2011, no such contract was ever even formed. As Father Warnick himself acknowledges, there could be no such contract without the bishop’s consent: Father Warnick admits that any contract renewal could become effective only with the bishop’s approval. {See defs.’ mot. summ. j. ex. A, am. compl. ¶ 15.) The bishop never consented; instead he revoked Father Wamick’s license, so there could be no contract. (Defs.’ mot. summ. j. ex. J, Bishop Bennison’s letter.) He could not get a part-time employment contract to be a priest after having his license to minister revoked. Moreover, Father Warnick did not produce any evidence there was a “meeting of the minds,” Schreiber, 627 A.2d at 808, on any aspect of the purported part-time contract, and certainly none of the essential terms — compensation, hours, scope of responsibilities, or benefits.

The elements of a cause of action for intentional interference with existing or prospective contractual relations are as follows:

“(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party;
(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual legal damage as a result of the defendant’s conduct.”

Strickland v. Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. Ct. 1997).

Father Warnick alleges one or more of movants tortiously interfered with two existing and four potential future contracts. No action was taken to harm the contractual relationship with respect to the January 2010 contract, and Father Warnick suffered no damages: All saints paid him in full under that contract and allowed him to live in the rectory for an additional six months after it was over. (See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 70 & 71.)

As for the alleged part-time employment contract for the next year, Father Warnick alleges only that Ms. Colwell moved the Vestry to delay consideration of a part-time contract until after the December 16 congregational meeting. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 7.) An entity cannot interfere with its own contract. Maier v. Maretti, 671 A.2d 701, 707 (Pa. Super. Ct. 1995). A contracting entity’s agents are not “third parties,” and their conduct cannot give rise to a claim of tortious interference. Daniel Adams Assoc. v. Rimbach Pub., 519 A.2d 997, 1001-02 (Pa. Super. Ct. 1987). As a part of the Vestry, Ms. Colwell could not possibly interfere with the Vestry’s own potential contracts.

Father Warnick also asserts the Bishop of Pennsylvania, Bishop Bennison, tortiously interfered with four of his potential employment contracts with episcopal parishes in southeastern Pennsylvania. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 7.) The Bishop of Pennsylvania’s approval is necessary for any employment contract between any episcopal parish in Pennsylvania and a priest. Since the bishop is an agent of the church, as a matter of law he cannot be found to have interfered with the church’s own contracts.

Because Father Warnick suffered no damages with respect to his final existing contract to be All Saints’ priest, because he could not show any evidence that the purported part-time contract ever came into being, and because as a matter of law a party cannot tortiously interfere with its own contracts, Father Warnick failed to show the elements of his contract claims and this court was compelled to grant summary judgment on these claims in defendants’ favor.

3. Civil Conspiracy

Civil conspiracy requires that “two or more persons combine or enter an agreement to commit an unlawful act or to do an otherwise lawful act by unlawful means. Proof of malice is an essential part of a cause of action for conspiracy.” Burnside v. Abbott Labs., 505 A.2d 973, 980 (Pa. Super. Ct. 1985) (internal citations and quotations omitted). Without a cause of action for any particular act, a cause of action for civil conspiracy to commit that act is not possible. DeBlasio v. Pignoli, 918 A.2d 822, 831 (Pa. Commw. Ct. 2007). Because, as already explained, Father Warnick failed to show the elements of his defamation or contract claims, he necessarily failed to show the elements of his claim for civil conspiracy as it relates to those claims. Because movants were entitled to judgment as a matter of law on all other claims, they were also entitled to judgment as a matter of law on this one.

C. Movants were entitled to summary judgment because Father Warnick failed to provide evidence in support of his claims.

A party may also move for summary judgment if “an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action.” Pa.R.C.P. 1035.2(2). In answering a motion for summary judgment in this situation, a party must identify “evidence in the record establishing the facts essential to the cause of action...which the motion cites as not having been produced.” Pa.R.C.P. 1035.3(a)(2) (emphasis added). The non-movant — Father Warnick in this case — must provide sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Hoffman v. Pellak, 764 A.2d 64, 65-66 (Pa. Super. Ct. 2000). Allegations are insufficient at this stage; actual evidence must be produced. ToDay’s Hous. v. Times Shamrock Commc’ns, Inc., 21 A.3d 1209, 1213 (Pa. Super. Ct. 2011) (quoting Shepard v. Temple Univ., 948 A.2d 852, 856 (Pa. Super. Ct. 2008) (citations omitted)). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. Ct. 2011) (quoting Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000)). The “mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Phaff v. Gerner, 303 A.2d 826, 829 (Pa. 1973).

As already explained, Father Warnick makes various allegations, but he fails to do what the law requires him to do in order to survive a motion for summary judgment: he fails to offer evidence on some of the required elements of his claims. He alleges that statements are false but fails to produce evidence that they are false, and in many instances, as previously described, he admits their truth. For example, he claims that it is false that he and Sarah Caswell lived together before they were married (see defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶¶ 70 & 71) but concedes they spent the night or weekends at one another’s homes while he was still married to someone else. He also admits to the Facebook sexual position quiz. (See defs.’ mot. summ. j. ex. A, am. compl. ¶ 32). Consequently, others’ statements about his facebook page, while perhaps embarrassing, are not false and cannot constitute defamation. Father Warnick concedes that posting sexual information on facebook and living with a woman before marriage might be construed by an ecclesiastical court as “conduct unbecoming of a member of the clergy.” (See defs.’ mot. summ. j. ex. D, Warnick dep. 165:21-166:2, Aug. 22,2013.) Consequently, statements made by others to that same effect are not false and not defamation under the law.

Father Warnick alleges that certain written communications exist, but he provides no evidence for them. (See defs.’ mot. summ. j. ex. G, pl.’s resp. to defs.’ first set of interrogs., no. 21.) Fie alleges that a vote in 2011 constituted a new and binding contract, but he provides no evidence in support of this allegation. {See defs.’ mot. summ. j. & pl.’s answer in opp’n to defs.’ mot. summ. j. ¶ 51.) He alleges a besmirched reputation, but offers no evidence for it. {See, e.g., pl.’s br. in opp’n to defs.’ mot. summ. j. at 14.) He alleges economic losses, but offers no evidence of them. {See, e.g., defs.’ mot. summ. j. ex. A am. compl. ¶¶ 67, 69, 71, 81, 90, 99, 101, 109, & 113.)

Father Wamick’s mere allegations are not enough to allow his claims to proceed to a jury. At this stage, father Warnick must produce evidence of falsity, the existence of contracts, and damages among other required elements of his claims. He failed to do so. Consequently, having failed to produce necessary evidence, Father Wamick’s claims are insufficient to survive a motion for summary judgment.

IV. CONCLUSION

Even if the bill of rights did not contain an establishment clause and a free exercise clause protecting religious freedom, defendants would be entitled to summary judgment, because Father Warnick failed to make out the elements of his claims or offer sufficient evidence under the law for any of his claims to proceed to trial. More fundamentally, Father Wamick’s claims are barred because the first amendment guarantees the free exercise of religion and provides for the separation of church and state. Father Warnick asks this court to interfere with a church’s choice of minister, which is one of the deepest and most elemental forms of religious expression there is, and which is exactly the kind of religious choice the first amendment was expressly designed to protect. Such state invasion of religious matters is emphatically forbidden by the constitution. As the chief justice of the United States expressed it, “The church must be free to choose those who will guide it on its way.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 710 (2012).

      . Father Warnick lists “Libel/Slander” (Count III) as a separate claim from “Defamation” (Count I), but libel and slander are simply forms of defamation. Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa. Super. Ct. 2008).

      . Father Warnick just quibbles with the plain meaning of the phrase “living together.”


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    DiGiacinto v. Obelinas

      Michael A. Snover, for plaintiff.

      Kevin M. Higgins, for defendants.
    April 17, 2014—
   NEALON, J.,

The plaintiff in this personal injury action has filed a de novo appeal of the special discovery master’s ruling under Pa.R.C.P. 4010 requiring him to submit to two physical examinations by different physicians chosen by the defense. The discovery master found that the defense had established “good cause” for separate examinations by distinct medical specialists since plaintiff’s cervical disc injury and bilateral carpal tunnel syndrome allegedly involve conditions that are treated by different specialists. Plaintiff argues that his injuries are orthopedic in nature and can be properly evaluated by a single physician who conducts one physical examination on behalf of the defense.

Cervical disc injuries and carpal tunnel syndrome are not the exclusive domain of distinct medical disciplines and do not necessitate independent assessments by different specialists. The defense may retain either an orthopedic surgeon or a neurosurgeon to perform a single examination of plaintiff and effectively evaluate his cervical disc and carpal tunnel injuries in the process. The fact that plaintiff has received treatment for those injuries from two separate orthopedic surgeons is of no consequence and does not warrant subjecting plaintiff to the burden of two examinations under Rule 4010. Consequently, plaintiff’s de novo appeal will be granted and the defense request to compel plaintiff to submit to two medical examinations by different physicians will be denied.

I. FACTUAL BACKGROUND

On December 10,2007, plaintiff, Thomas F. DiGiacinto (“DiGiacinto”), was involved in a motor vehicle accident with defendant, Ralph C. Obelinas (“Obelinas”), as both parties were travelling in a southerly direction on Route 476, Montgomery County. (Docket entry no.5 at ¶¶ 4-5; Docket entry no.8 at ¶¶ 4-5). At the time of the accident, Obelinas was acting within the course and scope of his employment with defendant, Nivert Metal Supply, Inc. (“Nivert”). (Id. at ¶¶ 2-3). DiGiacinto filed suit against Obelinas and Nivert seeking to recover economic and noneconomic damages for “severe bodily injuries, including, but not limited to, neck and left shoulder injuries” causing “great mental anguish and physical pain.” (Docket entry no.5 at ¶¶ 10-12).

According to the medical records that have been produced during discovery, DiGiacinto was originally treated by Neal A. Stansbury, M.D., of Valley Sports & Arthritis Surgeons (“VSAS”), for his accident-related orthopedic injuries. Dr. Stansbury initially diagnosed DiGiacinto with “left shoulder strain, aggravation of pre-existing degenerative disc disease and carpal tunnel syndrome.” (Docket entry no. 31 at ¶¶ 7, 12; Docket entry no. 32 at ¶¶ 7,12 & exhibits A, D). Dr. Stansbuiy provided ongoing treatment to DiGiacinto for his left shoulder and bilateral wrist complaints, but referred him to one of his twelve VSAS partners, Amir H. Fayyazi, M.D., for evaluation of his cervical symptoms. (Id). Dr. Stansbury performed a right carpal tunnel release on DiGiacinto in April 2008 and a left carpal tunnel release in June 2008. (Id. at Exhibit D).

Dr. Fayyazi diagnosed DiGiacinto’s cervical injury as “an aggravation of a pre-existing cervical degenerative disc disease” causing “nerve root compression.” (Id. at ¶¶ 9, 11 & exhibit C). On July 31, 2008, Dr. Fayyazi performed an “anterior cervical discectomy and fusion at [the] C3-4” vertebral level “for treatment of C3-4 nerve root compression.” (Id. at p. 3). In addition, DiGiacinto has been diagnosed with accident-related depression for which he has received psychiatric treatment. (Docket entry no. 31 at ¶ 6; Docket entry no. 32 at ¶6).

Defense counsel sought to schedule physical and mental examinations of DiGiacinto pursuant to Pa.R.C.P. 4010, and forwarded a letter to DiGiacinto’s counsel requesting his concurrence with the scheduling of three such examinations: (1) a physical examination by one physician “to address the carpal tunnel issues;” (2) “[a] second examination...with a different physician to address the alleged cervical spine issues;” and (3) a third examination “to address any psychological/psychiatric issues.” (Docket entry no. 31 at ¶17; docket entry no. 32 at ¶ 17 & exhibit A). DiGiacinto has agreed, through his counsel, to submit to a “mental examination” under Rule 4010 in connection with his depression claim, but has objected to two “physical examinations” by separate physicians for his cervical, left shoulder and carpal tunnel injuries on the grounds that those “conditions are orthopedic in nature” and can be evaluated by the same physician. (Docket entry no. 31 at ¶¶6, 23; docket entry no. 32 at ¶¶ 6, 23 & exhibit B). Obelinas presented a “motion to compel independent medical examinations” to the special discovery master, who granted that motion and ordered DiGiacinto to submit to one “medical examination related to his alleged cervical spine injuries” to “be performed by a medical professional of defendants’ choosing,” and to present himself to a separate “medical professional of defendants’ choosing” in order to undergo a second “medical examination related to his general orthopedic issues involving allegations of bilateral carpal tunnel and left shoulder complaints.” (Docket entry no. 32 atpp. 1-2).

DiGiacinto filed a de novo appeal of the discovery master’s order directing him to submit to two medical examinations with respect to his cervical, left shoulder and carpal tunnel injuries. (Docket entry no. 33). Noting that Rule 4010(a)(3) empowers a court to order a party to submit to a physical or mental examination “only on motion for good cause shown,” DiGiacinto maintains that the defense has not demonstrated good cause for multiple medical examinations “[mjerely because [DiGiacinto] had surgeries performed by two different orthopedic surgeons” in the same practice group. (Docket entry no. 38 at p. 3). He posits that “[t]here is absolutely no reason why a single orthopedic [examiner] cannot address both orthopedic injuries in this case.” (Id. at p. 9). DiGiacinto further submits that Rule 4010 contemplates only a single examination “as a per se rule,” and that “extrapolating expansion of principles which would result in additional or more extensive invasions of [DiGiacinto’s] bodily privacy” is not warranted. (Id. at p. 14).

In support of their request for two physical examinations of DiGiacinto under Rule 4010, Obelinas and Nivert argue that “[bjecause [DiGiacinto] required two separate and distinct specialists to address the carpal tunnel and cervical spine issues, [Obelinas and Nivert] should be permitted an equal and fair opportunity to address the same allegations in the same fashion.” (Docket entry no. 36 at p. 8). Obelinas and Nivert assert that they should be allowed to retain separate medical witnesses to address those orthopedic injuries, and reason that “[t]o limit the defendants to one physical injury examination would require the defendants to locate one medical expert who is appropriately qualified in both carpal tunnel surgeries and cervical spine surgeries.” (Id. at p. 10). Following the completion of oral argument on April 7,2014, DiGiacinto’s discovery appeal became ripe for disposition.

II. DISCUSSION

(A) MEDICAL EXAMINATION CRITERIA UNDER Pa.R.C.P. 4010

Pennsylvania Rule of Civil Procedure 4010(a) authorizes a trial court to order a party “to submit to a physical or mental examination” by a licensed physician, dentist or psychologist whenever the mental or physical condition of the party “is in controversy” in the case. Pa.R.C.P.4010(a)(l)-(2). As per the plain language of Rule 4010(a)(3), the court may order such a physical or mental examination “only on motion for good cause shown.” Pa.R.C.P.4010(a)(3). See also Willis v. Bigus, 2012 WL 8898049, at *4 (Lacka. Co. 2012). The requirement of “good cause” under Rule 4010(a) is designed “to ensure that a party’s privacy is not unduly invaded,” Uhl v. C.H. Shoemaker & Son, Inc., 432 Pa. Super. 230, 234, 637 A.2d 1358, 1360 (1994), and to “preclude the use of such an examination for improper purposes.” McGratton v. Burke, 449 Pa. Super. 597, 601-602, 674 A.2d 1095, 1097 (1996), app. denied, 546 Pa. 667, 685 A.2d 546 (1996). The determination of whether “good cause” exists under Rule 4010 is committed to the sound discretion of the trial court. John M. v. Paula T., 524 Pa. 306, 312, 571 A.2d 1380, 1383 (1990), cert. denied, 498 U.S. 850 (1990); McGratton, 449 Pa. Super. at 601, 674 A.2d at 1097.

DiGiacinto concedes that the defense has demonstrated “good cause” for a physical examination of his neck, left shoulder and carpal tunnel injuries. He further agrees that the requisite cause exists for a separate “mental examination” in conjunction with his depression claim. The parties disagree, however, on the issue of whether DiGiacinto must submit to two physicial examinations under Rule 4010.

(B) MULTIPLE EXAMINATIONS UNDER Pa.R.C.P. 4010

Rule 4010 is silent on the number of medical examinations to which a party may be subjected. See 9 Goodrich-Amram 2d § 4010(a): 19, at 412 (2d ed. 2008); 7 Standard Pennsylvania Practice 2d § 37:22, at pp. 166-67 (2009). Although Rule 4010 “does not specifically permit or prohibit more than one examination of a plaintiff,...a defendant bears a heightened burden of demonstrating good cause for a supplemental medical examination.” Lodolce v. Township of Roaring Brook, 99 Lacka. Jur. 54, 57 (1998). The grant or denial “of more than one examination is a matter wholly within the discretion of the court,” which “may prevent a second or third physicial examination if there is really nothing new to be discovered” and “the device is being used to put pressure on the plaintiff to settle.” Matychuck v. Purnell, 11 Pa. D. & C. 2d 507,508 (Montg. Co. 1957) (quoting Goodrich-Amram, Vol. 4 at pp. 192,203).

There is a paucity of reported case law addressing requests for multiple examinations under Rule 4010, and most of those decisions concern instances where a second examination of the plaintiff was demanded by the defense after the plaintiff had already undergone an earlier examination. Some trial courts have required plaintiffs to submit to a second examination under Pa.R.C.P. 4010 if a significant period of time has elapsed since the date of the original medical examination. See, e.g., Edelstein v. Tipton, 69 Pa. D. & C. 2d 248,250 (Phila. Co. 1974) (“In light of the length of time since the initial examination, and the continuing nature of the injury, a second examination is justified.”); Sperath v. Thomas, 48 Pa. D. & C. 2d 309, 310 (Buck Co. 1969) (“Since the accident occurred on January 13, 1966, and the plaintiff has not been examined since March 10, 1966, it appears clear to us that a second examination being within our discretion, is indicated.”). Other courts have declined to grant requests for a second examination where the defense has simply argued that “something new might be discovered” during another examination. See White v. Wasko, 57 Luz. Leg. Reg. 261, 264 (1967) (stating that defense contention “that the reexamination by [the defense medical witness] may result in something new being discovered is at best a weak reason for the requested examination,” and denying motion for second examination on basis “that it would cause plaintiff unreasonable annoyance and embarrassment.”). Accord Farmer v. Supermarkets General Corp., 10 Pa. D. & C. 4th 500,503 (Phila. Co. 1991) (“Rule 4010 does not authorize a defendant to obtain successive physical examinations of a plaintiff until the defendant eventually obtains an expert’s report that makes him ‘happy’”)(emphasis in original).

The Court of Common Pleas of Lackawanna County first addressed the issue of multiple examinations under Rule 4010 in Lodolce, supra, where the defense request for a re-examination was predicated upon the fact that more than two years had passed since the date of the defense expert’s original examination of the plaintiff. Lodolce, 99 Lacka. Jur. at 56. In that case, we noted that courts “may permit an additional examination if subsequent discovery reveals that the plaintiff is alleging a new injury since the date of the initial examination, or deliberately concealed an injury at the time of the first examination.” Id. at 57; see also 9 Goodrich-Amran 2d, supra, at p. 412 (stating that a second examination may be warranted if plaintiff’s discovery responses “disclose a claim for an injury which was not originally asserted and which was not inquired into by the physician at the first examination,” or “where an injury was deliberately concealed at the first examination and was subsequently discovered by the moving party.”). We observed that “[i]n those unusual instances in which consecutive examinations have been allowed, exceptional circumstances have existed to justify the inconvenience and additional burden to the plaintiff.” Lodolce, 99 Lacka. Jur. at 57. Although more than two years had elapsed since the defense expert had examined Lodolce and concluded that his accident-related injuries had resolved, Lodolce had not developed a new injury in the interim, nor had he withheld any information about his injuries at the time of his first examination. Id. at 58-59. As a result, we held:

After considering the defendants’ purported need for an additional examination by [defense medical witness], and weighing it against [Lodolce’s] right to be protected against unwarranted invasions of his privacy and the inconvenience that [Lodolce] will experience if he is required to submit to another examination of questionable value, we conclude that defendants have not established “good cause” for a supplemental examination under Pa.R.C.P. 4010(a).

Id. at 59.

Other Lackawanna County jurists have applied the foregoing standard articulated in Lodolce when considering defense requests for serial examinations under Rule 4010. DiGiacinto references three reported decisions in which Judge Carmen D. Minora cited the criteria set forth in Lodolce and denied the defense motions seeking additional examinations. See, e.g., Judge v. Solid Waste Service, Inc., 41 Pa. D. & C. 4th 225,234-236 (Lacka. Co. 1999) (quoting Lodolce and refusing request for second examination since there was “no indication that plaintiff has alleged any new injuries or deliberately concealed an injury” and “no evidence of any exceptional circumstances to justify the inconvenience and additional burden of having plaintiff undergo more than one IME.”); Wilczynski v. Lackawanna County Multi-Purpose Stadium Authority, 42 Pa. D. & C. 4th 337, 344-345 (Lacka. Co. 1999) (quoting Lodolce and denying defense request for second examination because “[tjhere is no suggestion in the defendant’s motion that the plaintiff withheld any medical history or information from [defense medical examiner] or...any indication in the defendant’s motion that the plaintiff has developed a new injury.”); Driscoll v. Walker, 52 Pa. D. & C. 4th 316,321-323 (Lacka. Co. 2001) (citing “heightened scrutiny” test in Lodolce and holding that defendant in tort case and employer in workers’ compensation proceeding, who were both represented by the same defense counsel, would be limited to “only one comprehensive omnibus independent medical examination addressing all the injuries flowing from both the auto accident herein and the workers’ compensation injury.”). Obelinas and Nivert rely upon the unpublished opinion in Mehall v. Benedetto, No. 09 CV 5849 (Lacka. Co. Aug. 9, 2012), where Judge Robert A. Mazzoni upheld the special discovery master’s order requiring the plaintiff to submit to a re-examination by the defense medical expert.

In Mehall, “[n] either plaintiff’s complaint nor his amended complaints identified] a foot injury” and merely asserted “lumbar injuries” resulting from his automobile accident on September 10, 2007. Id. at pp. 1-2 & n. 1. By the time of his discovery deposition on April 27, 2010, the only medical records that had been produced by Mehall were the office records of Dr. Mark Micciche, and “[ajccording to Dr. Micciche’s discharge notes, [Mehall] was allowed to return to full work activity shortly after the accident, more particularly on November 28,2007. Id. at p. 2. Almost three and one-half years following his discharge without restriction, Mehall “returned to Dr. Micciche on April 11, 2011, for treatment of his foot,” and for “the first time” was diagnosed as “suffering from post-traumatic arthritis in his left foot. Id. However, Mehall “failed to seasonably supplement defendants’ requested discovery, as required by Pa.R.C.P. 4007.4,” prior to the defense medical examination of him on July 21,2011, as a result of which that examination “focus [ed] on [Mehall’s] alleged back injuries.” Id. at pp. 1, 2. After that examination was completed and the report of the defense medical expert was produced, Mehall furnished defendants with the reports of Dr. Micciche dated April 11, 2011, and July 18, 2011, and “defendants, for the first time, became aware that [Mehall] returned to Dr. Micciche for treatment and that [Mehall] was advancing a claim for post-traumatic arthritis.” Id. at p. 2.

In considering the defense request for a supplemental examination to evaluate Mehall’s foot injury claim, Judge Mazzoni quoted Lodolce for the proposition that an additional examination is allowable “if subsequent discovery reveals that the plaintiff is alleging a new injury since the date of the initial examination or deliberately concealed an injury at the time of the first examination.” Id. at p. 3 (quoting Lodolce, 99 Lacka. Jur. at 57). Judge Mazzoni found that a new injury was alleged by Mehall following his original examination on July 21, 2011, and that “[defendants were not aware of this development until after their [Rule 4010 exam] on the lumbar issues and only after [Mehall] tendered Dr. Micciche reports on July 25, 2011.” Id. at p. 4. Judge Mazzoni noted that Mehall’s “failure to seasonably supplement his discovery [h]ad the same ‘net effect’” as a litigant “deliberately concealing] an injury at the time of the first examination.” Id. at pp. 3-4. Based upon “the exceptional circumstances in Mehall, Judge Mazzoni concluded that a second examination limited to MehalPs foot injury would not “be an unreasonable invasion of privacy” and would afford the defense “a fair opportunity to address this new diagnostic development that was first disclosed to defendants late in the discovery process.” Id. at pp. 4-5.

Unlike the aforementioned cases where additional medical examinations were ordered, an earlier physical examination of DiGiacinto has not been conducted in this case. Consequently, Obelinas and Nivert do no premise their request for multiple examinations upon the lapse of time since the original examination, see Edelstein, supra, and Sperath, supra, the development of a new injury since the date of the first examination, or the concealment of an injury at the time of the initial examination. See Mehall, supra. Rather, they assert, and the discovery master agreed, that the defense has established “good cause” to have “two separate and distinct specialists” evaluate DiGiacinto’s “alleged cervical spine injuries” and “his general orthopedic issues involving allegations of bilateral carpal tunnel and left shoulder complaints.” (Docket entry no. 32 at pp. 1-2; Docket entry no. 36 at p. 8).

The defense demand for separate examinations by different specialists is based upon the faulty premise that the same medical specialist cannot treat and evaluate a cervical injury and a carpal tunnel condition. Orthopedic surgeons routinely treat carpal tunnel syndrome and perform carpal tunnel surgeries. See Hansen v. Workers’ Compensation Appeal Board (Stout Road Associates), 957 A.2d 372,373-374 (Pa. Cmwlth. 2008) (“An orthopedic surgeon diagnosed bilateral carpal tunnel syndrome” and performed a “carpal tunnel decompression in November 2005.”); Olivetti Corp. v. Workmen’s Compensation Appeal Board (Robinson), 75 Pa. Cmwlth. 584,587-588,462 A.2d 934, 936 (1983) (injured employee was “referred to an orthopedic surgeon and an operation was performed on both wrists for the carpal tunnel syndrome.”). Orthopedic surgeons often testify regarding their treatment of carpal tunnel syndrome, including their surgical intervention. See Beck v. Workers ’ Compensation Appeal Board (Kellogg Company), 2010 WL 9519126, at *1 (Pa. Cmwlth. 2010), app. denied, 611 Pa. 628, 23 A.3d 543 (2011); Leyva v. International Surface Preparation Corp., 79 Pa. D. & C. 4th 362, 369 (Phila. Co. 2006). Parties who defend carpal tunnel syndrome claims similarly retain orthopedic surgeons to examine carpal tunnel claimants and to provide testimony on behalf of the defense. See City of Philadelphia v. Workers’ Compensation Appeal Board (Williams), 578 Pa. 207, 211, 851 A.2d 838,840 (2004) (employer presented testimony of orthopedic surgeon who opined that “carpal tunnel syndrome is not a disabling condition.”); Levine v. Travelers Property Casualty Insurance Company, 69 A.3d 671, 673 (Pa. Super. 2013) (insurer retained an orthopedic surgeon to conduct “an independent medical examination (“IME”) to determine if Ms. Levine’s carpal tunnel symptoms were causally related to the motor vehicle accident.”).

Orthopedic surgeons also diagnose and treat cervical injuries and degenerative disc disease, and perform discectomies for those injuries. See Kastenbaum v. Workers’ Compensation Appeal Board (Teleflex Marine), 2013 WL 3946315, at *1 (Pa. Cmwlth. 2013); Alltell Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Kovalik), 2010 WL 9513222, at *1 (Pa. Cmwlth. 2010). Parties defending claims involving degenerative disc disease and discectomies commonly hire orthopedic surgeons to conduct medical examinations on their behalf and to testify in their defense. See DePaolo v. Department of Public Welfare, 865 A.2d 299,303 Pa. Cmwlth. 2005) (“...orthopedic surgeon, who reviewed claimant’s medical records and performed an independent medical examination of claimant...testified that there is nothing in the claimant’s medical history to suggest that her 1999 injury aggravated or accelerated her degenerative disc disease at the C6-7 level” and “opined that the claimant’s 2002 C6-7 cervical discectomy was due to degenerative disc changes.”); Badyrka v. Workers’ Compensation Appeal Board (Clarks Summit State Hospital), 729 A.2d 182,183-184 (Pa. Cmwlth. 1999); Pavonarius v. Workers’ Compensation Appeal Board (Samuel Levitt Sheet Metal. Inc.), 714 A.2d 1135, 1136 (Pa. Cmwlth. 1990), app. denied, 558 Pa. 613, 736 A.2d 606 (1999). Thus, contrary to the defense contention in this case, the injuries and resulting surgeries asserted by DiGiacinto are, in fact, conditions that are treated and procedures that are performed by orthopedic surgeons who commonly testify regarding those issues on behalf of the plaintiff and the defense.

Neurosurgeons likewise treat carpal tunnel syndrome and provide surgical care for that ailment. See Sauer v. Workers ’ Compensation Appeal Board (Verizon Pennsylvania, Inc.), 26 A.3d 531,534 (Pa. Cmwlth. 2011); Hackert v. Teachers Insurance and Annuity Association, 1993 WL 460806, at *2 (E.D. Pa. 1993), aff’d, 31 F.3d 1171 (3d Cir. 1994). Neurosurgeons also treat degenerative disc disease, perform discectomies and offer testimony regarding the same. See DePaolo, 865 A.2d at 303; Frederick v. Action Tire Company, 744 A.2d 762, 763 (Pa. Super. 1999), app. denied, 564 Pa. 711, 764 A.2d 1070 (2000). For that reason, neurosurgeons are regularly hired by parties defending claims involving cervical spine injuries and discectomies. See, e.g., Roberts v. Workers’ Compensation Appeal Board (Thomson Consumer Electronics), 2008 WL 9397279, at *5 (Pa. Cmwlth. 2008); Kinder Morgan v. United Steel, 2014 WL 1330032, at *2 (E.D. Pa. 2014). Therefore, in lieu of retaining an orthopedic surgeon to evaluate DiGiacinto’s cervical and carpal tunnel claims, Obelinas and Ni vert may opt to secure the services of a neurosurgeon to examine DiGiacinto pursuant to Pa.R.C.P. 4010. Cf. Stitzell v. York Memorial Osteopathic Hospital, 754 F. Supp. 1061, 1063 (M.D. Pa. 1991) (noting that hospital staff neurosurgeon’s practice “overlapped” with orthopedic surgeons’ practices, and stating that “[t]he common areas of practice were lumbar spine surgery, anterior cervical spine surgery and carpal tunnel surgery of the wrist.”).

A cervical spine injury and carpal tunnel syndrome are not the sole province of discrete medical specialties, and the defense may retain either an orthopedic surgeon or a neurosurgeon to conduct a single examination of DiGiacinto for those injuries and to testify as an expert witness on behalf of the defense. The mere fact that DiGiacinto may ultimately present the testimony of two orthopedic surgeons, Dr. Stansbury and Dr. Fayyazi, does not justify the inconvenience of two physicial examinations of him by separate physicians hired by the defense. It is not uncommon for one party to present the testimony of more expert witnesses than an opposing party. In accordance with the Pennsylvania Suggested Standard Civil Jury Instructions, the jury in this case should be instructed that the number of witnesses “offered by a party does not, alone, decide the weight of the evidence,” and that “[t]he believable testimony of one witness presented by one party may outweigh the testimony of many witnesses presented by another party.” Pa. SSJI(Civ.) 5.20 (4th ed); see also Westinghouse Electric Corp. v. Board of Property Assessment of Allegheny County, 539 Pa. 453, 464 n. 3, 652 A.2d 1306, 1312 n. 3 (1995) (stating that the fact-finder “is not required to decide an issue in favor of the party having the largest number of witnesses who testify in support of that party’s position.”); Pressler v. City of Pittsburgh, 419 Pa. 440, 447, 214 A.2d 616,620 (1965) (concluding that jurors “do not, or should not, decide cases by counting witnesses on either side and then giving their verdict to the side with the greater number” since “[jjustice is not a matter of comparable mathematics.”). The jurors should also be instructed that they “do not have to accept an expert’s opinion just because he or she is considered an expert in his or her field.” Pa. SSJI(Civ.) 4.80 (4th ed.) “The law presumes that the jury will follow the instructions of the court,” Com. v. Arrington, 2014 WL 783559, at *8 n. 11 (Pa. 2014), and as such, any fear by the defense that the jury will decide the merits of DiGiacinto’s claims based upon the number of expert witnesses presented by either side is unwarranted.

Based upon the foregoing, Obelinas and Nivert have not established “good cause” for requiring DiGiacinto to submit to two physical examinations by separate physicians. Accordingly, DiGiacinto’s de novo appeal will be granted, the special discovery master’s order will be reversed, and the defense motion to compel two medical examinations under Rule 4010 will be denied. An appropriate follows.

ORDER

And now, this 17th day of April, 2014, upon consideration of the de novo discovery appeal of plaintiff, Thomas F. DiGiacinto, pursuant to Lacka. R.C.P. 4000.1, the memoranda of law submitted by the parties, and the oral argument of counsel on April 7,2014, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. The de novo discovery appeal filed by plaintiff, Thomas F. DiGiacinto, pursuant to Lackawanna County R.C.R 4000.1 is granted;

2. The special discovery master’s order directing plaintiff, Thomas F. DiGiacinto, to submit to two physical examinations by separate physicians is reversed; and

3. The “motion to compel independent medical examinations” filed by defendants, Ralph C. Obelinas and Nivert Metal Supply, Inc., is denied.

      . Pursuant to Lacka. Co. R.C.P. 4000.1, discovery motions must initially be presented to and decided by the court-appointed discovery master whose ruling “may be appealed de novo’” to the court of common pleas within ten days of the master’s decision. Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533, 537-538 (Lacka. Co. 2012).

      . Prior to the adoption of the first version of Rule 4010 on June 1, 1951, one lower court granted a defense request for two medical examinations, and reasoned that “[wjhere the disease is progressive, or the injuries are alleged to be permanent, the defendant ought to have an opportunity to examine again before trial, where two years and six months have elapsed since the first examination.” Narzisi v. Meyer Dairy Corp., 22 Pa. D. & C. 258, 260 (Northampton Co. 1933).

      . A Luzerne County orthopedic surgeon, Peter A. Feinstein, M.D., testified on behalf of the employer in Badyrka, and opined that the employee’s cervical injury had resolved and that the “claimant had no restrictions and was able to return to work.” Badyrka, 729 A.2d at 184. Dr. Feinstein frequently testifies on behalf of the defense in civil litigation. See Clifford v. Leonardi, 61 Pa. D. & C. 4th 13, 16-18 (Lacka. Co. 2003) (Dr. Feinstein verified in discovery responses that in a four year period, he conducted 2,449 medical examinations and provided 856 trial depositions for the defense side of litigation). Dr. Feinstein has identified himself in the past as a local pioneer in endoscopic carpal tunnel release surgery. See “New Method Used in Wrist Surgery Procedure,” The Standard-Speaker, Vol. 124 at p. 22 (July 17, 1990). Dr. Feinstein would presumably be available to conduct the defense examination of DiGiacinto in this matter.

      . By way of illustration, a motor vehicle accident claimant may submit to a pre-litigation physicial examination at the behest of the claimant’s own first-party benefits insurer which provides medical expense coverage. See Fleming v. CNA Insurance Companies, 409 Pa. Super. 285, 288-289, 597 A.2d 1206, 1207-1208 (1999) (if the language of the insurance policy requires an insured to submit to a physical examination by a physician of the insurer’s choosing, the first-party benefits insurer does not have to establish “good cause” in order to compel the insured to undergo that medical examination). Despite the fact that such a claimant has already been examined by a physician hired by an insurer, [s]he may nevertheless be required to undergo another examination under Rule 4010 after litigation has been commenced. See Kapp v. Oasis Enterprises, Inc., 83 Lacka. Jur. 190, 192 (1982). In that event, the tortfeasor may offer the testimony of the physician who conducted the pre-litigation examination, as well as the physician who performed the subsequent examination under Rule 4010.