author: LOUGHRAN, P.J.,

text:
    Thorsen v. Kaufmann’s Department Stores

      C.P. of Westmoreland County,
    no. 1170 of 2000.

      Amy S. Cunningham, for plaintiffs.

      Vance E. Antonacci, for defendant.
    November 1, 2000
   LOUGHRAN, P.J.,

This action arises out of an incident that occurred on or about January 13, 2000, at the Westmoreland Mall involving plaintiff, Christine Thorsen. On that date, wife/plaintiff was shopping at the Kaufmann’s Department Store. While at Kaufmann’s, it is alleged that the wife/plaintiff used a dressing room to try on an article of clothing. After trying on several pairs of jeans, the wife/plaintiff left the dressing room wearing a pair of jeans that she had tried on intending to go to the sales floor to get a different size pair of jeans. After returning to the dressing room, she found that it was occupied, and the Kaufmann’s sales clerk had her pants.

The wife/plaintiff alleges that a sales associate told her that she was “in trouble,” and that her pants were being “held hostage” by the Kaufmann’s sales associate and that she was prevented from leaving the area by these actions.

The wife/plaintiff filed a complaint followed by an amended complaint which alleges that plaintiff was defamed by questioning her honesty and character (Count I), and that the Kaufmann’s employees committed false imprisonment (Count II), assault and battery (Count III), intentional infliction of emotional distress (Count IV), and invasion of privacy (Count V) on the wife/plaintiff. Count VI is the husband/plaintiff’s claim for loss of consortium.

The defendant has filed preliminary objections in the nature of a demurrer to each count of plaintiffs’ complaint.

In ruling on a preliminary objection in the nature of a demurrer, the court must accept as true all well-pleaded allegations in the complaint and all inferences reasonably deduced therefrom. Further, all doubts should be resolved against dismissal of the complaint. Stone & Edwards Insurance v. Department of Insurance, 151 Pa. Commw. 266, 616 A.2d 1060 (1992). The court shall sustain preliminary objections and dismiss the complaint only in cases that are clear and free from doubt that the law will not permit recovery. Capital City Lodge No. 12, Fraternal Order of Police v. City of Harrisburg, 138 Pa. Commw. 475, 588 A.2d 584 (1991).

Under Pennsylvania law, a plaintiff must satisfy the following elements in order to succeed on a defamation claim:

(1) the defamatory character of the communication,

(2) publication,

(3) the communication’s application to the plaintiff,

(4) an understanding by the recipient of the communication of its defamatory meaning,

(5) an understanding by the recipient of the communication that the communication was intended to be applied to the plaintiff,

(6) special harm resulting to the plaintiff from the publication, and

(7) abuse of conditionally privileged occasion. 42 Pa.C.S. §8343(a)(1)-(7).

In determining whether the communications are defamatory, the court must consider the effect the statement would fairly produce or the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. Maier v. Maretti, 448 Pa. Super. 276, 282, 671 A.2d 701, 704 (1995).

The statements attributed to the Kaufmann’s employee in paragraphs 7, 9, 10 and 11 are of the kind that negatively affects the plaintiff’s standing in the community. Accordingly, applying the above standards for preliminary objections, defendant’s objections as to Count I must be denied.

Plaintiffs allege that the defendant employees falsely imprisoned her by taking her pants from the unoccupied dressing room. A claim for false imprisonment arises if an actor (1) acted intentionally to confine an individual within fixed boundaries, (2) the intentional acts did directly or indirectly confine the individual, and (3) the individual was conscious of the confinement or is harmed by it. Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), (citing Restatement (Second) of Torts §35). The defendant contends that as there was no physical restraint there can be no false imprisonment. However, the plaintiff has alleged that she was confined in the fitting room area by the defendant, that the defendant told her that she could not go out on the sales floor wearing Kaufmann’s merchandise and that she (the employee) had Mrs. Thorsen’s pants. (Amended complaint paragraphs 7, 8 and 9.) Accordingly, a question of fact exists for the fact-finder to decide if by her words and actions the Kaufmann’s employee confined Mrs. Thorsen within the boundaries of the fitting rooms.

As such, applying the standards in deciding preliminary objections in the nature of a demurrer, the objections as to Count II must be denied.

The defendant asserts that Count III must be dismissed as it fails to state a claim for either assault or battery under Pennsylvania law.

The tort of assault occurs whenever an actor intentionally causes an imminent apprehension of a harmful or offensive bodily contact. Sides v. Cleland, 436 Pa. Super. 618, 648 A.2d 793 (1994) (citing Restatement (Second) of Torts §21). The plaintiff’s apprehension must be reasonable, and the actor must take some affirmative action in an attempt to carry out the threatened harm. Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960). Words in themselves no matter how threatening, do not constitute an assault. The actor must take some affirmative action; the tort of battery occurs whenever an individual is actually subjected to a harmful or offensive contact. Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997).

Accepting plaintiffs’ allegations as tme establishes that Kaufmann’s employee “Ellen” removed wife/plaintiff’s pants from the apparently abandoned dressing room. Although plaintiffs claim that wife/plaintiff’s dignity was offended and that she was “put in apprehension of further contact with her belongings,” the complaint simply does not state a cause of action for assault or battery. Absent from the allegation is any bodily contact between the Kaufmann’s employees and wife/plaintiff, let alone harmful or offensive bodily contact. Further absent from the complaint are any allegations that the store employees, by their actions, placed wife/plaintiff in a reasonable apprehension of harmful or offensive imminent bodily contact. Bodily contact — not contact with an article of clothing not on the person of the plaintiff — is required to state a claim. Reasonable apprehension of bodily contact — not apprehension of future contact with personal property — is required to state a claim for assault.

A review of plaintiffs’ complaint reveals that these matters are not asserted because they cannot be and plaintiff cannot prevail in her action for assault or battery. Accordingly, defendant’s preliminary objection as to Count II will be sustained and Count III, will be ordered stricken.

Defendant contends that Count IV of plaintiffs’ complaint for intentional infliction of emotional distress is totally insufficient and should be dismissed.

In order to state a claim for intentional infliction of emotional distress, plaintiffs must allege facts that, if accepted as true, establish conduct by an actor (1) that is extreme and outrageous, (2) that is intentional or reckless, and (3) that causes severe emotional distress. See Hoy v. Angelone, 456 Pa. Super. 596, 691 A.2d 476 (1997).

Although there may not be one specific act, when read as a whole, there is conduct for a fact-finder to find outrageous conduct that was reckless and did cause emotional distress. Therefore, at this time, given the standards for preliminary objections, defendant’s objections as to Count IV will be denied.

As to defendant’s objections regarding Count V entitled invasion of privacy, again, reading the complaint as a whole, the plaintiff is given permission to wear store clothes onto the floor area, then is told she is in trouble, her clothes in the dressing room are removed and searched and there are some words exchanged between the wife/plaintiff and store employees which would be offensive to the plaintiff, all create questions of fact, at this time, that prevent the granting of preliminary objections. Accordingly, defendant’s objections to Count V will be denied.

The defendant’s preliminary objections to punitive damages and loss of consortium claims will be denied. Although the punitive damages claim may not get to a jury, there are allegations in plaintiffs’ complaint, which prevent striking the same at this time.

Accordingly, the following order will be entered:

ORDER

And now, to wit, November 1, 2000, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the defendant’s preliminary objections as to Count II of plaintiffs’ complaint alleging assault and battery are granted and Count III is hereby dismissed. All other preliminary objections of the defendant are denied.


source: Caselaw Access Project

author: HORAN,

license: Public Domain

text:
    Nothdurft v. Knab

      C.P. of Butler County,
    no. AD93-10732.

      Michael Balzarini, for plaintiffs.

      Korry Alden Greene, for defendants.
    June 21, 1999
   HORAN,

Before this court for consideration is defendants’ motion in limine, which, for the reasons set forth below, is denied.

FACTS

This case concerns a civil action arising out of the alleged medical negligence committed by the defendant doctors Harold W. Knab and James Weisensee in their care and treatment of Mary Herold. On September 14, 1993, the plaintiffs, Mary A. Nothdurft and Fred C. Herold, as the co-executors of the estate of Mary Herold, filed a complaint against the defendants, alleging negligence and causes of action for wrongful death and survival from the death of plaintiffs’ decedent, Mary Herold. The defendants filed an answer and new matter on January 6, 1994, presenting various allegations in response.

The State Board of Osteopathic Medicine disciplined defendants for their treatment of Mary Herold. On February 22, 1999, defendants filed a motion in limine and a brief in support, arguing that the board is a peer review board as defined under the Peer Review Protection Act, 63 P.S. §425.1 et seq., and, as such, testimony or records of review from the board arising out of this civil action are inadmissible. Therefore, they request this court enter an order precluding the introduction of any testimony or any record concerning the peer review of the defendants by the board.

DISCUSSION

Plaintiffs argue that the Act is limited in its application to reviews conducted by health care providers, and, as such, because the board is not a health care provider, the provisions of the Act relied upon by the defendants do not apply in this instant case. A review of the language in relevant provisions under the Act reveals ambiguity as to whether the board may be considered a review organization under the Act.

The Act defines “peer review” as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers....” 63 P.S. §425.2. A “professional health care provider” is defined under the Act as “individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth-” 63 P.S. §425.2. The Act defines a review organization as “any committee engaging in peer review,” as well as some of the following: “a physicians’ advisory committee, . . . any committee established by one or more state or local professional societies, to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. [A review organization could also include a] . . . committee or individual reviewing the professional qualifications or activities of its medical staff or applicantsJor admissions thereto.” 63 P.S. §425.2.

These relevant sections of the Act do not specifically refer to any licensing boards for various professions. Licensing boards are legislatively created to regulate licensing and to review licensees’ performance of their professional duties. As such, while these licensing boards' perform many of the review and investigative functions outlined in the Peer Review Protection Act, these boards are not expressly included within the definition of “re-1 view organizations.” The board’s member composition may meet the requirements of a professional society; however, the board is not established by such society. The board is legislatively created. This is a key distinction. Thus, it appears the licensing board and its proceeding are not governed by the Peer Review Protection Act.

In support of this decision, the legislative history also identifies that the Peer Review Protection Act was not intended to apply to disciplinary proceedings before the state licensing boards.

“Peer standard review organizations are not disciplinary organizations for the professionals. They deal principally with utilization review, whether a patient should have gotten the care or should not have gotten the care. They do not go into the problem of whether a doctor did something wrong or did not do something right, or whether he was negligent and so forth. Peer standard review organizations do not deal with that kind of problem. It is whether a patient should stay in the hospital a certain length of time or whether he should not stay in the hospital a certain length of time; whether he should have the operation or whether he should not have the operation.

“This testimony through a peer standard review organization is just that. It is an advising on and a thrashing out of each one of these cases by a group of physicians. It has nothing to do with disciplining each one of these professionals groups.” Legislative House Journal of Pennsylvania, May 7, 1974 at p. 4439.

Furthermore, the Osteopathic Medical Practice Act, 63 PS. §271.1 (1978), provides at section 271.10 that

“The license shall be recorded in the office of the board in a record to be kept for that purpose. It shall be open to public inspection. A certified copy of the record shall be received as evidence in all courts in this Commonwealth.”

Thus, any licensure record maintained pursuant to this provision is public and shall be admissible. This legislative directive is contrary to the effect of the Peer Review Protection Act. Therefore, interpreting from the language of both the Peer Review Protection Act and the Osteopathic Medical Practice Act, it is the ruling of this court that no confidentiality applies to the disciplinary proceeding and records pursuant thereto from the state board in this case.

Accordingly, we enter the following:

ORDER

And now, June 21, 1999, in accordance with the foregoing memorandum opinion, it is ordered that defendants’ motion in limine is denied.


author: NEALON, J.,

text:
    McAndrew v. Donegal Mutual Insurance Co.

      C.P. of Lackawanna County,
    no. 99-CV-1761.

      Jill H. Miller and Michael R. Mey, for plaintiff.

      Robert E. Kelly Jr., for defendant.
    May 17, 2002
   NEALON, J.,

In this first-party bad faith litigation, defendant, Donegal Mutual Insurance Company, has submitted 2,577 documents for an in-camera review to determine whether certain materials are immune from discovery by virtue of the attorney-client privilege and the work product doctrine. Since a bad faith claimant must prove an insurer’s state of mind in denying a claim, those documents pertaining to Donegal’s bases for denying plaintiff’s first-party benefits claim are not protected from discovery under Pa.R.C.P. 4003.3. Additionally, inasmuch as Donegal has asserted an “advice of counsel” defense with respect to certain allegations, it has waived the attorney-client privilege for those documents which relate to its supposed reliance upon its attorney’s recommendations in continuing to deny medical expense benefits. However, those records which contain confidential communications or mental impressions concerning the merits of the bad faith claim, pretrial strategy and trial tactics are not subject to discovery. Thus, for the reasons set forth below, plaintiff’s motion to compel supplemental discovery responses will be granted in part and denied in part.

I. FACTUAL BACKGROUND

On April 19,1997, plaintiff, Lawrence J. McAndrew, was involved in an automobile accident while he was insured by Donegal under a policy that provided coverage for first-party medical expense benefits. On April 14,1999, McAndrew instituted this action after Donegal denied payment of medical bills for left shoulder treatment he had received from Eugene Chiavacci, M.D., beginning in October 1997. (See plaintiff’s complaint, ¶¶4-9, 14-18.) In his complaint, McAndrew asserts that Donegal breached its insurance contract by failing to pay medical expense benefits even though Dr. Chiavacci related the shoulder treatment to the accident, (id., ¶¶20-27), and he seeks to recover for unpaid bills, statutory interest, counsel fees and costs pursuant to 75 Pa.C.S. § 1716. (Id., ¶¶29-35.) McAndrew further avers that Donegal is chargeable with bad faith conduct under 42 Pa.C.S. §8371 for which he demands punitive damages and attorneys’ fees. (Id., ¶¶37-39.)

In its original and amended answers, Donegal contends that it is not contractually obligated to pay for any treatment related to McAndrew’s left shoulder since he did not injure his shoulder in the accident on April 19, 1997. Specifically, Donegal maintains that McAndrew merely complained of neck and head injuries during his emergency room visits on April 19,1997, and April 23, 1997, and did not seek medical attention for a shoulder condition until six months after the accident. In addition, Donegal asserts that in the “application for benefits” dated June 13, 1997, which Donegal received on August 12, 1997, McAndrew only identified “head + back injuries” attributable to the accident and did not indicate that he had injured his shoulder. (See defendant’s new matter, ¶¶40-43, exhibits A-C; defendant’s amended new matter, ¶¶40-42.)

After McAndrew filed a certificate of readiness for a jury trial listing, this matter was eventually scheduled for trial in January 2002. Prior to that time, McAndrew withdrew his breach of contract claim and elected to proceed solely on his bad faith cause of action in a non-jury trial setting. (See plaintiff’s supplemental trial brief, pp. 1-3.) On the eve of trial, Donegal’s attorney submitted a petition for leave to withdraw as counsel and a request for a continuance of the bench trial which had been scheduled before Judge Vito P. Geroulo, and by orders dated January 14, 2002, Judge Geroulo granted the motion to withdraw as counsel, continued the trial to January 29, 2002, and directed Donegal to reimburse McAndrew for the fees and expenses incurred in preparing for trial on January 14, 2002.

New defense counsel entered his appearance on January 18, 2002, and a non-jury trial commenced on January 29,2002, at which time testimony was received from Donegal’s claim representative, claims supervisor and vice-president of casualty claims. (See transcript of proceedings on 1/29/02, pp. 3-231.) Donegal’s representatives testified that based upon their review of the police report, McAndrew’s emergency room records and application for benefits, the available medical information, and other file materials, Donegal declined to pay any bills for treatment related to McAndrew’s left shoulder. (Id., pp. 62-63, 98, 171-72, 182, 184.) Although Donegal’s witnesses acknowledged that Donegal had a continuing obligation to investigate and evaluate McAndrew’s claim for medical expense benefits even after this litigation was filed, they asserted that they relied upon their legal counsel to apprise Donegal of any significant developments, including the deposition testimony of Dr. Chiavacci, which could affect its original decision to deny payment of shoulder care bills. (Id., pp. 124-25, 133-34, 195-97.)

At the conclusion of the first day of testimony, McAndrew’s attorney objected that all relevant documentation had not been produced by Donegal and Judge Geroulo directed counsel to meet to determine whether Donegal’s discovery responses had been properly supplemented. (Id., pp. 231-37.) On the following morning, McAndrew moved for a mistrial on the basis that Donegal had not produced all relevant records in its file, and Donegal countered that many of the documents at issue were not discoverable since they contained confidential attorney-client communications or mental impressions concerning the merits of the claim. After hearing the respective arguments of counsel, Judge Geroulo granted the request for a mistrial. (T.P. dated 1/30/02, pp. 4-36, 43, 52.)

In light of Donegal’s argument that the materials in question are exempt from discovery based upon the attorney-client privilege and the work product doctrine, Me Andrew’s counsel raised concerns regarding Judge Geroulo’s ability to review potentially privileged materials and to thereafter serve as the fact-finder during the retrial. (Id., pp. 11-12, 44, 48-49, 51.) Consequently, by order dated March 11, 2002, Donegal was directed to submit to the undersigned for an in-camera review “all records that may arguably be responsive to plaintiff’s discovery requests, including a privilege log identifying by page all records which are being produced, together with the bases for the privilege(s) asserted.” Donegal was also instructed to serve a copy of the privilege log upon McAndrew’s attorneys and both parties were afforded the opportunity to submit legal memoranda by March 22, 2002. The parties have filed their legal briefs and following an in-camera inspection of the documents submitted, this matter is now ripe for disposition.

II. DISCUSSION

(A) Standard of Review

Discovery is generally allowed with liberality in civil litigation, Schwab v. Milks, 8 D.&C.4th 557, 558 (Lacka. Cty. 1990), and any limitations or restrictions upon discovery are narrowly construed. Horwath v. Brownmiller, 51 D.&C.4th 33, 39 (Monroe Cty. 2001). All doubts regarding the discoverability of information should be resolved in favor of permitting discovery. Fitt v. General Motors Corp., 13 D.&C.4th 336, 338 (Lacka. Cty. 1992). Furthermore, the party objecting to the production of discovery generally bears the burden of establishing that the information or document sought is not discoverable and that the objections should be sustained. Reusswig v. Erie Insurance, 49 D.&C.4th 338, 341 (Monroe Cty. 2000) (citing Schwab, supra); Hilgert v. Fish, 8 D.&C.3d 271, 273 (Monroe Cty. 1978).

(B) Attorney-Client Privilege/Work Product Doctrine

Under the Pennsylvania Rules of Civil Procedure, a party may obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and “it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact.” Pa.R.C.P. 4003.1(a), (c). The attorney-client privilege is codified in the Judicial Code and provides that “[i]n a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa.C.S. §5928. Although the language of the statute only addresses communications from the client to the attorney, it has also been extended to safeguard communications from the attorney to the client if their disclosure would reveal confidential communications from the client to the attorney. See Coregis Ins. Co. v. Law Office of Carole F. Kafrissen, 186 F. Supp.2d 567, 571-72, 575 (E.D. Pa. 2002). However, the attorney-client privilege does not bar all discovery concerning communications between counsel and a client or a former client. Panko v. Alessi, 362 Pa. Super. 384, 389, 524 A.2d 930, 932 (1987); Lobolito Inc. v. North Pocono School Dist., 53 D.&C.4th 347, 350 (Wayne Cty. 2001). Rather, it only bars discovery or testimony regarding confidential communications made by the client during the course of the representation. Birth Center v. St. Paul Companies Inc., 727 A.2d 1144, 1164 (Pa. Super. 1999), aff’d, 567 Pa. 386, 787 A.2d 376 (2001); Panko, supra.

The work product doctrine evolved from the rules of discovery and is currently set forth in Pa.R.C.P. 4003.3 which states:

“Subject to the provisions of Rules 4003.4 and 4003.5, 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 his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.”

While the Commonwealth Court has characterized the work product rule’s protection of an attorney’s mental impressions as “unqualified,” see Sedat Inc. v. Department of Environmental Resources, 163 Pa. Commw. 29, 33, 641 A.2d 1243, 1245 (1994), the Superior Court has more recently concluded that “[t]he protection of either an attorney’s or representative’s work product... is not absolute.” See Birth Center, supra at 1165.

The burden of proof which customarily governs discovery disputes (i.e., the objector must demonstrate non-discoverability) does not apply to attorney-client privilege issues. “Because of the importance of the privilege to the administration of justice, the burden of proof is upon the party asserting that the disclosure of information would not violate the attorney-client privilege.” Gould v. City of Aliquippa, 750 A.2d 934, 937 (Pa. Commw. 2000) (citing In re Investigating Grand Jury of Philadelphia County, 527 Pa. 432, 440, 593 A.2d 402, 406 (1991)). With respect to a discovery objection based upon the work product doctrine, it is less clear which party carries the burden of persuasion. Compare Mesko v. Community Medical Center, 12 D.&C.3d 741, 745 (Lacka. Cty. 1979) (“It is nearly universally held that the burden of showing that the information sought to be discovered is prohibited by [the work product rule] rests upon the party objecting to such discovery.”) and Holowis v. Philadelphia Elec. Co., 38 D.&C.2d 260, 267 (Chester Cty. 1966) (“the burden is upon the party claiming immunity of information ... to convince the court that the information sought was gathered in anticipation of litigation.”), with Long v. CMC Equipment Rental Inc., 70 D.&C.2d 403, 407 (Phila. Cty. 1975) (reasoning that imposing a burden upon the objector to establish that the material is protected work product “would contravene the clear protection of an attorney’s work product provided by the rule”). Cf. LaValle v. Office of General Counsel of Com., 564 Pa. 482, 502 n.1, 769 A.2d 449, 461 n.1 (2001) (Nigro, J., concurring) (remarking that the parties seeking discovery “had the burden to show that the report was both outside the work product privilege ... and a public record under the [Right to Know] Act.”). The very nature of bad faith claims presents more vexing discovery issues for the bench and bar.

(C) Discovery in Bad Faith Litigation

42 Pa.C.S. §8371 enables an insured to recover statutory interest, counsel fees and punitive damages against an insurer which “has acted in bad faith toward the insured” in a first-party context. To recover under the bad faith statute, an insured must show by clear and convincing evidence that: (1) the insurer did not have a reasonable basis for denying benefits under the policy; and (2) the insurer knew or recklessly disregarded its lack of a reasonable basis in denying the claim. Keefe v. Prudential Property and Casualty Ins. Co., 203 F.3d 218, 225 (3d Cir. 2000); Olsofsky v. Progressive Insurance Co., 52 D.&C.4th 449, 459-60 (Lacka. Cty. 2001). Bad faith liability under section 8371 is not restricted to the insurer’s actions in originally denying the claim and may include misconduct by the insurer during the pendency of the litigation. O’Donnell v. Allstate Ins. Co., 734 A.2d 901, 906-907 (Pa. Super. 1999); Ridgeway v. U.S. Life Credit Life Ins. Co., 793 A.2d 972, 977 (Pa. Super. 2002) (“The scope of section 8371 has been extended to the investigatory practices of an insurer during litigation initiated by an insured to obtain the proceeds of his or her insurance policy.”). Thus, the insured in a bad faith action may be entitled to discovery of documents which were created after the filing of the complaint. Adams v. Allstate Ins. Co., 189 F.R.D. 331, 332 (E.D. Pa. 1999).

To prove insurer bad faith under section 8371, an insured must establish the insurer’s actual or ostensible state of mind by demonstrating that it knew or recklessly disregarded its lack of a reasonable basis for denying benefits under the policy. Proof of the insurer’s scienter may often involve advice or recommendations by counsel and mental impressions regarding the merit of a claim or defense. The explanatory note to Pa.R.C.P. 4003.3 contemplates this discovery quandary and states:

“The rule is carefully drawn and means exactly what it says. It immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories, nothing more.
“There are, however, situations under the rule where the legal opinion of an attorney becomes a relevant issue in an action; for example, an action for malicious prosecution or abuse of process where the defense is based on a good faith reliance on a legal opinion of counsel. The opinion becomes a relevant piece of evidence for the defendant, upon which defendant will rely. The opinion, even though it may have been sought in anticipation of possible future litigation, is not protected against discovery. A defendant may not base his defense upon an opinion of counsel and at the same time claim that it is immune from pre-trial disclosure to the plaintiff.
“As to the representatives of a party, and sometimes an attorney, there may be situations where his conclusions or opinions as to the value or merits of a claim, not discoverable in the original litigation, should be discoverable in subsequent litigation. For example, suit is brought against an insurance carrier for unreasonable refusal to settle, resulting in a judgment against the insured in an amount in excess of the insurance coverage. Here discovery and inspection should be permitted in camera where required to weed out protected material.” See explanatory note (1978) to Pa.R.C.P. 4003.3. See also, Nedrow v. Pennsylvania National Mutual Casualty Insurance Co., 31 D.&C.3d 456, 460 (Somerset Cty. 1981) (insurer’s file from prior litigation is not exempt from discovery in a bad faith action where the legal opinion of an attorney as to the value or merit of a claim is a relevant issue).

It is somewhat disingenuous for an insurer to maintain that it denied a claim based, in part, upon the advice of legal counsel, but simultaneously oppose an insured’s access to documents which may demonstrate the legitimacy, or expose the frivolity, of an “advice of counsel” defense. In Birth Center v. St. Paul, the insurer asserted attorney-client privilege and work product doctrine objections with regard to “(1) two letters prepared by St. Paul’s counsel analyzing the law of bad faith in lieu of the verdict entered against Birth Center in the [liability] case; (2) handwritten notes prepared by St. Paul’s liabilities claims supervisor based on his conversation with counsel concerning potential bad faith litigation; and (3) a typewritten note from St. Paul’s liabilities claims supervisor setting forth counsel’s comments and analysis.” Birth Center, 727 A.2d at 1164. In holding that the requested documents were discoverable, the Superior Court concluded that “St. Paul waived its right to challenge discovery of these materials on appeal because St. Paul made them relevant to its state of mind at the time it paid the excess verdict.” Id. at 1166. Accord, Reusswig, 49 D.&C.4th 351; General Refractories Co. v. Fireman’s Fund Insurance Co., 45 D.&C.4th 159, 169-170 (Phila. Cty. 2000) (holding that where counsel is integrally involved with the denial of the claim or the legal opinion of an attorney is otherwise relevant to the bad faith claim, the attorney’s advice or opinions are not shielded from discovery by the work product doctrine).

Similarly, in Mueller v. Nationwide Mutual Insurance Co., 31 D.&C.4th 23 (Allegheny Cty. 1996), Judge R. Stanton Wettick comprehensively analyzed the applicability of the attorney-client privilege and work product rule in bad faith litigation and reasoned:

“An insurance company’s defense that it acted in good faith need not be based on communications from counsel; it may be the position of the decision-makers for the insurance company that they were not influenced by any advice that counsel provided.
“I recognize that there will be instances in which an insurance company will contend that it was influenced by the advice of counsel. It may, for example, contend that it acted in good faith because it based its decision on advice of counsel. In this instance, the privilege is deemed to have been waived by the client. A party is not permitted to use the attorney-client privilege as a sword and as a shield. . . . Consequently, if an insurance company is going to raise as a defense to the bad faith claim that it relied upon advice of counsel, the privilege has been waived as to any communications between the insurance company and its counsel regarding the underlying claims upon which the bad faith claim is based. Thus, in these cases Nationwide and Erie cannot raise the attorney-client privilege unless they state that they will not be contending that advice of counsel was a factor that influenced the manner in which they handled the insured’s claims.” Id., at 32-33. (citation omitted) See also, Jones v. Nationwide Insurance Co., 2000 WL 1231402, **2-3 (M.D. Pa. 2000) (finding that the insurer waived the attorney-client privilege by asserting affirmative defenses which made its state of mind relevant since that “the advice of counsel is inextricably interwoven into the fabric of the facts that occurred”).

Although the concept of waiver based upon an “advice of counsel” defense can be applied with greater ease if the underlying arbitration or litigation has already been concluded, see e,g., Birth Center, supra, it is equally applicable in cases where the first-party benefits claim is still pending. See e.g., Mueller, 31 D.&C.4th at 28 (“I recognize that... I am allowing plaintiff to obtain statements of Nationwide’s non-attorney representatives regarding the merit and value of plaintiff’s first-party benefit claim, and of strategy and tactics that should be pursued, before the first-party benefit claim is tried.”).

(D) In-Camera Inspection of Documents

As reflected in Donegal’s “privilege/non-discoverable log,” Donegal objects to the production of a host of records on the grounds that they are shielded from discovery by the attorney-client privilege and the work product doctrine set forth in Rule 4003.3. Donegal contends that once suit was instituted, its formerly discoverable claims file “was transformed into a litigation file in which confidential communications with counsel about the lawsuit were , placed, in addition to documents containing various conclusions, opinions, notes and summaries, and litigation strategy and tactics developed by Donegal Mutual representatives.” (See defendant’s memorandum of law, p. 5.) Donegal posits that McAndrew “is precluded from obtaining access to those portions of Donegal Mutual’s claim log specifically created during Donegal Mutual’s litigation of the present matter.” (Id. p. 8.) Donegal’s argument is devoid of merit with respect to its post-suit conduct relative to McAndrew’s medical expense benefits since it had a continuing duty to investigate the first-party benefits claim. See O’Donnell, supra. As such, documents generated after the filing of this lawsuit are discoverable to the extent that they concern the reasonableness of Donegal’s persistent denial of benefits and do not disclose confidential information regarding the merits of the bad faith claim. See Adams, supra; Mueller, supra.

Our in-camera review of the materials submitted indicates that the documents which Donegal seeks to exempt from discovery can be segregated into six categories. The first class of documents relates to transmissions with counsel which simply enclose pleadings, discovery, records, stenographic bills, etc., and do not reveal confidential communications between Donegal and its counsel or mental impressions with respect to the bad faith claim. Since the statutory privilege merely insulates attorney-client correspondence which disclose confidential communications, documents numbers 212A, 230A, 243A, 387A-487A, 505A, 542A-545A, 567A, 629A, 782A-930A, 933A-1000A, 1005A, 1207A, 1916A-1966A, 1968A-1972A, and 1979A- 2017A are discoverable. See Birth Center, supra; Panko, supra. Included among those discoverable materials are claim log entries reflecting that unidentified telephone messages were left for counsel on his voice mail inasmuch as those notations do not divulge the substance of the telephone message and simply indicate that messages were left. (See 135A-137A, 158A, 160A, 171A-172A, 185A, 200A, 204A-206A.)

The second group of documents are comprised of itemized billing records that were forwarded to Donegal by its counsel for professional services and litigation costs. Attorney billing statements and time records are covered by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the exact nature of services performed. Fidelity & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 523 (E.D. Pa. 1996); Leach v. Quality Health Services, 162 F.R.D. 499, 501-502 (E.D. Pa. 1995). “[Statements and records that simply reveal the amount of time spent, the amount billed, and the type of fee arrangement between attorney and client are fully subject to discovery.” U.S. v. Keystone Sanitation Co. Inc., 885 F. Supp. 627, 675 (M.D. Pa. 1994). Since the billing records in this case do not disclose strategy or otherwise divulge work product or confidential information, they are discoverable and Donegal will be required to produce those documents numbered as 251 A, 257A-277A and 546A-551A.

The third type of record is a single page document reflecting the loss reserve that Donegal placed on McAndrew’s first-party benefits claim. See Sukel & Pipkin, Discovery and Admissibility of Reserves, 34 Tort & Ins. LJ. 191, 220 & n.14, 19-20 (Fall 1998). At least one Pennsylvania court has prohibited discovery of an insurer’s reserves on the basis that such information is not relevant in a bad faith action. See Ciccone v. Allstate Insurance Co., 49 D.&C.4th 505, 510 (Monroe Cty. 2000) (Wallach Miller, J.). Other courts have concluded that loss reserve records are relevant in a bad faith action in which an insured maintains that the insurer failed to properly handle or appraise a claim. See Cantor v. Equitable Life Assurance Society, 1998 WL 306208, *2 (E.D. Pa. 1998); North River Ins. Co. v. Greater NY Mut. Ins. Co., 872 F. Supp. 1411, 1412 (E.D. Pa. 1995). Our esteemed colleague Judge Wettick has compelled an insurer in a bad faith action to produce documentation describing the procedures by which the insurer established its loss reserves and has concluded that such reserve information may be pertinent to the issue of whether the insurer neglected to make a reasonable settlement offer. See Fretz v. Mutual Benefit Ins. Co., 37 D.&C.4th 173, 179-80 (Allegheny Cty. 1998). Since the amount of the loss reserve established for McAndrew’s first party benefits claim may arguably reflect that Donegal failed to properly investigate and evaluate the severity of his accident-related injuries, or refused to honor his shoulder treatment bills for an ulterior purpose (i.e. due, to an inadequate reserve for medical bills), the reserve is relevant to the purported basis for denial and Donegal will be ordered to produce document number 249A.

The fourth category of exhibits relates to Donegal’s processing of McAndrew’s medical bills and application for benefits and its ongoing investigation of his now-abandoned first-party benefits claim. Some of these materials relate to Donegal’s discussions with McAndrew’s workers’ compensation carrier, an insurance agent (Sandor Zangardi) and other parties regarding McAndrew’s medical and employment histories. These particular documents are pertinent to Donegal’s continuing evaluation of McAndrew’s claim and its corresponding justification for denial. It is conceivable that these records could be used to demonstrate that Donegal did not have a legitimate basis for denying McAndrew’s claim in the first instance and engaged in a post-suit fishing expedition in an effort to manufacture reasonable grounds for rejecting the medical expense claim. Therefore, documents 180A-189A 207A, 232A-237A, 320A-322A, 330A-336A, 358A-359A 368A-383A, 526A-531A, and 584A-585A are discoverable in that they relate to Donegal’s state of mind and do not include confidential attorney-client communications.

In addition to arguing that Dr. Chiavacci’s bills should have been honored initially inasmuch as he related McAndrew’s shoulder condition to the accident in the original attending physician’s report that was submitted to Donegal, McAndrew maintains that Donegal was unquestionably obligated to pay those bills once Dr. Chiavacci was deposed in this case and confirmed the requisite causal connection. Donegal’s representatives have responded to that charge by asserting that they relied upon their counsel to inform Donegal of any relevant developments, such as the deposition testimony of Dr. Chiavacci, which could have impacted upon Donegal’s decision to deny benefits. (See T.P. 1/29/02, pp. 124-25, 133-34, 195-97.) The fifth classification of records concerns Dr. Chiavacci’s deposition and the report that Donegal’s counsel submitted to it following the completion of that medical deposition. Since Donegal has affirmatively asserted an “advice of counsel” defense with respect to Dr. Chiavacci’s deposition, it has waived any attorney-client/work product protection that may have formerly immunized those materials and Donegal will be required to produce documents 498A-501A, 571A-574A and2130A-2131A. See Birth Center, supra; Mueller, supra.

The final genre of documents consists of internal memoranda, attorney-client correspondence and other records concerning discovery issues, deposition summaries, settlement discussions, court rulings and conferences, legal research, and pre-trial and trial strategy distinctly related to the merits of the bad faith claim. Unlike the fourth category of records which exclusively address McAndrew’s medical expense claim and Donegal’s denial of the same, the final group of documents contains confidential information and mental impressions regarding the viability of the bad faith allegations under 42 Pa.C.S. §8371. Consequently, documents 138A-151A, 153A, 157A, 161A-170A, 173A- 179A, 190A, 192A-199A, 201A-203A, 208A-209A, 214A-216A, 227A-228A, 231A, 239A-241A, 252A- 256A, 278A-304A, 324A-329A, 337A-340A, 343A- 357A, 360A-367A, 384A-386A, 510A-523A, 532A- 537A, 556A-564A, 570A, 575A-577A, 582A-583A, 591A-592A, 599A-604A, 607A-614A, 622A-628A, 638A-650A, 655A-677A, 681A-685A, 688A-781A, 931A-932A, 1724A-1805A, 1967A, and 1973A-1979A are not subject to discovery and McAndrew’s motion to compel production of those records will be denied.

ORDER

And now, May 17, 2002, upon consideration of plaintiff’s motion to compel supplemental discovery responses, defendant’s objections thereto, the memoranda of law filed by the parties, and the in-camera review of the documents submitted, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Plaintiff’s motion to compel supplemental discovery responses is granted in part and denied in part;

(2) Plaintiff’s motion to compel is denied with respect to those documents which have been numbered as 138A-151A, 153A, 157A, 161A-170A, 173A-179A, 190A, 192A-199A, 201A-203A, 208A-209A, 214A-216A, 227A-228A, 231 A, 239A-241A, 252A-256A, 278A-304A, 324A-329A, 337A-340A, 343A-357A, 360A-367A, 384A-386A, 510A-523A, 532A-537A, 556A-564A, 570A, 575A-577A, 582A-583A, 591A-592A, 599A-604A, 607A-614A, 622A-628A, 638A-650A, 655A-677A, 681A-685A, 688A-781A, 931A-932A, 1724A-1805A, 1967A, and 1973A-1979A, and defendant is not required to produce those materials;

(3) Plaintiff’s motion to compel is granted with respect to the remaining documents which have been identified in defendant’s “privilege/non-discoverable log,” and defendant’s objections to the production of those records are overruled; and

(4) Within 10 days of the date of this order, defendant shall produce for inspection by plaintiff and his counsel all documents which have not been identified in paragraph 1 of this order as being protected from discovery.

      . Although both parties demanded a jury trial on the face of their pleadings, see Pa.R.C.P. 1007.1(a), the Superior Court has concluded that a party does not have the right to demand a jury trial in a bad faith case predicated upon 42 Pa.C.S. §8371. See Mishoe v. Erie Insurance Co., 762 A.2d 369, 375-76 (Pa. Super. 2000), app. granted, 566 Pa. 666, 782 A.2d 547 (2001). However, if a party files an action asserting breach of an insurance contract and bad faith liability under section 8371, a litigant has the right to a jury trial on the contract claim with the presiding judge subsequently deciding the question of bad faith liability following the jury’s verdict on the breach of contract dispute. Petrecca v. Allstate Ins. Co., 797 A.2d 322, 326 (Pa. Super. 2002).


author: TERESHKO, J.,

text:
    Brotech Corp. v. Delmarva Chemicals Inc.

      Suzanne Schiller, Monica Matthews and Paul Rosen, for plaintiff.

      Jacqueline Promislo, for defendant.
    May 6, 2002
   TERESHKO, J.,

Before the court is the appeal taken by plaintiff, Brotech Corporation (appellant), from an order of the court dated October 31, 2001, granting summary judgment in favor of defendants, Delmarva Chemicals Inc. and GFI Chemicals (appellees).

Briefly, the relevant facts relating to this case are as follows:

Appellant is the manufacturer of cation exchange resins which are used in the water treatment process. Caustic soda is an ingredient used in the manufacture of the resins. Appellee is a supplier of caustic soda. Appellant brought a negligence and breach of contract action against appellee for supplying allegedly contaminated caustic soda that appellant used in manufacturing its resins. Appellant sold the resins to various customers who complained about an odor in the resins and subsequently returned the resins to appellant. As a result, appellant suffered lost profits due to the returned sales, purported to be in excess of four million dollars. This lawsuit was filed in June 1999. Appellant maintains a minimum two-year retention policy on its product samples and customer returns. The resins that are the subject of this litigation were manufactured in 1998; nevertheless, they were destroyed some time after appellant filed its lawsuit in 1999, even though they were significant evidence in the litigation. Thus, appellee was deprived of the opportunity to conduct inspection and testing of the resins to defend appellant’s claims.

The court imposed a discovery deadline of March 5, 2001, pursuant to a case management order. Numerous discovery orders were entered against appellant to comply with requests that would assist appellees in the defense of this lawsuit. (See orders of July 26, 2000, September 13, 2000, November 29, 2000, and January 10, 2001). In particular, appellees sought the identity of the batches of resins that were returned by appellant’s customers. Appellant responded to this request, “Unknown. No records were kept of the returns.” In fact, appellant could not identify when the batches were returned or provide a list of customers who received the allegedly tainted batches. Appellant’s quality control manager, Joseph D’Alessandro, testified that there was no odor present in the sample retained by appellant. Furthermore, Mr. D’Alessandro testified that he did not recall any of the returned samples being kept.

Trial was scheduled for November 5, 2001. On October 25,2001, despite the fact that the discovery deadline expired in March 2001, counsel for appellant notified his opponent that samples of the subject resins had finally been located and were available for testing.

On October 31, 2001, this court granted appellees’ motion for summary judgment. An appeal of that order was filed on November 29, 2001, and appellant, in its Rule 1925(b) statement of matters complained of on appeal, raises several issues.

Appellant argues that the court erred by granting summary judgment based on spoliation of the evidence because the evidence that was allegedly destroyed was not the defective product that is the subject of the litigation. Appellant further contends that the evidence sought by appellee is in existence and available for testing. Finally, appellant argues that the court’s dismissal of its lawsuit, for appellant’s discovery delays, was too harsh of a sanction based upon the Third Circuit’s test for appropriate sanctions in spoliation cases.

The principles governing a motion for summary judgment are well-settled. Summary judgment may be granted when the pleadings, depositions, interrogatory answers, admissions, affidavits, and expert reports, if any, show that there is no genuine issue as to any material fact and that the record entitles the moving party to judgment as a matter of law. Pa.R.C.P. 1035.1 and 1035.2. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the moving party. Breslin by Breslin v. Ridarelli, 308 Pa. Super. 179, 454 A.2d 80 (1982). The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. Elder v. Nationwide Insurance Co., 410 Pa. Super. 290, 599 A.2d 996 (1991). Once a motion for summary judgment is made and is properly supported, the non-moving party may not simply rest upon the mere allegations or denials in her pleadings. Pa.R.C.P. 1035.3. The non-moving party must set forth specific facts showing that there is a genuine issue for trial. Curran v. Children’s Service Center of Wyoming County Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990). The purpose of Pa.R.C.P. 1035 is “to assure that the motion for summary judgment may ‘pierce the pleading’ and to require the opposing party to disclose the facts of his claim —” Roland v. Kravco Inc., 355 Pa. Super. 493, 513 A.2d 1029 (1986). (emphasis omitted)

“A party which reasonably anticipates litigation has an affirmative duty to preserve relevant evidence.” Bowman v. American Medical Systems Inc., 1998 WL 721079 (E.D. Pa.), (citing Baliotis v. McNeil, 870 F. Supp. 1285, 1290 (M.D. Pa. 1994)). In Roselli v. General Electric Co., 410 Pa. Super. 223, 599 A.2d 685 (1991), the Superior Court held that when a plaintiff voluntarily disposes of the product which he claims is defective, summary judgment in favor of the defendant is appropriate. The Roselli court stated:

“To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff’s attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.” Id. at 228, 687-88 (citing Martin and Greenspan v. Volkswagan of America, no. 88-8261, 1989 WL 81296 (E.D. 5 Pa. July 13, 1989)).

In Troup v. Tri-County Confinement Systems Inc., the Superior Court found that “a plaintiff’s willful and knowing destruction of evidence is sufficient to warrant sanctions. . . .” 708 A.2d 825, 827 (Pa. Super. 1998). Moreover, “Pennsylvania state and federal cases applying the spoliation of evidence doctrine have consistently granted summary judgment to defendants when the plaintiff was in any way at fault for failing to preserve the defective product.” Dansak v. Cameron Coca-Cola Bottling Company Inc., 703 A.2d 489, 493 (Pa. Super. 1997).

Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, a trial court may “make an appropriate order” if a party “fails to make discovery or to obey an order of the court respecting discovery.” Pa.R.C.P. 4019(a)(l)(viii); Wolloch v. Aiken, 756 A.2d 5, 13 (Pa. Super. 2000), reargument denied (2000). “The decision to sanction a party and the severity of the sanction is a matter vested in the discretion of the trial court.” Id., citing Croydon Plastics v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). Where evidence is destroyed, sanctions may be appropriate, including the outright dismissal of claims, the exclusion of countervailing evidence, or a jury instruction on the “spoliation inference.” This permits the jury to assume that “the destroyed evidence would have been unfavorable to the position of the offending party.” Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). In Schroeder v. PennDOT, 551 Pa. 243, 251, 710 A.2d 23, 27 (1998), reargument denied (1998), the Pennsylvania Supreme Court adopted the test enunciated by the Third Circuit Court of Appeals for deciding the appropriate penalty for spoliation of evidence cases. This test requires the court to examine “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that would protect the opposing party’s rights and deter future similar conduct.” Id.

Here, appellant failed to adhere to its own minimum two-year retention policy for the resin samples and instead attempts to lay blame on appellees for waiting until the litigation was well under way to request the samples. The resin samples were under the exclusive control of appellant and therefore appellant, in order to proceed with its case, was obligated to preserve the samples as evidence. Appellant was not even able to provide the identity of the batches or resins that were returned by its clients. Appellant’s verified answer was “Unknown. No records were kept of the returns.” See defendant’s motion for summary judgment, exhibit “G,” plaintiff’s verified response to defendants’ second set of supplemental interrogatories and document requests addressed to plaintiff, no. 2. Furthermore, plaintiff was unable to produce samples of the specified resins manufactured in 1998 and 1999, stating that the “samples were discarded as part of standard two-year retention policy so they no longer exist except possibly for 1999 that will be produced.” See id, no. 27.

Appellant contends that this is not a spoliation issue because the defective product is the caustic soda provided by appellees, rather than the resin samples. This is a silly argument because appellant’s entire case rests upon the allegation that its resin product is defective because the caustic soda was defective. Appellant offers no proof that the resin was defective or that the caustic soda was the defective ingredient. Appellant’s quality control manager testified that the caustic is only one of a number of ingredients used in manufacture of the resins. See defendants’ motion for summary judgment, exhibit “B,” deposition of Joseph D’Alessandro (December 7,2000), p. 137. As for appellant’s assertions now that the evidence sought is in existence and available for testing, such an assertion cannot be found in the record before the court. A letter signed by plaintiff’s counsel and attached to its response to a motion for summary judgment does not fall into the category of “pleadings, depositions, interrogatory answers, admissions, affidavits, and expert reports” which comprise the “record” pursuant to Pa.R.C.P. 1035.1. Further, this “11th hour discovery” of the alleged samples becomes highly suspicious in light of the volume of litigation attached to the prior discovery issues.

Moreover, based upon the factors enunciated in Schroeder, summary judgment was proper. First, as for the “degree of fault of the party who altered or destroyed the evidence,” the samples were at all times in the exclusive custody and control of appellant; no blame can be placed on appellee for destruction of the resin samples. Schroeder v. PennDOT, 551 Pa. at 251, 710 A.2d at 27. Next, “the degree of prejudice suffered by the opposing party” is clear: appellees have no ability to defend themselves against the claims since they had no opportunity to have the samples analyzed and tested by an expert who would testify on their behalf. Id. And, in light of appellant’s assertion, on the eve of trial, that the samples were actually located, appellees are still severely prejudiced by the fact that expert discovery deadlines have long expired. Finally, as to “the availability of a lesser sanction that would protect the opposing party’s rights and deter future similar conduct,” the litigation progressed for more than two years, having been initiated in June 1999 and scheduled for trial in November 2001, and without the availability of a defense to appellant’s claims, there is no lesser sanction to protect appellees in this instance. Id. Four orders were entered against appellant between July 2000 and January 2001, yet appellant failed to act diligently to locate either the alleged defective resin samples or provide complete answers to appellees’ discovery requests. Therefore, under the Schroeder test, dismissal of appellant’s lawsuit was within the discretion of the court. Summary judgment was properly granted.

      . Plaintiff’s complaint, ¶1.

      . Defendants’ motion for summary judgment, exhibit “B,” deposition of Joseph D’Alessandro (December 7, 2000), p. 137.

      . Plaintiff’s complaint, ¶¶2, 6.

      . Id., ¶¶10, 14.

      . Defendants’ motion for summary judgment, exhibit “E,” deposition of William Fries, pp. 145-46.

      . Three other orders were entered against the plaintiff relating to its obstreperous behavior in failing to produce witnesses for deposition. In fact, plaintiffs were ordered to pay the sum of $2,000 as a sanction by orders dated January 24, 2001, and February 28, 2001.

      . Id, exhibit “G,” plaintiff’s response to defendants’ second set of supplemental interrogatories and document requests addressed to plaintiff, no. 2.

      . Id, nos. 3 and 4.

      . Defendants’ motion for summary judgment, exhibit “B,” dep. of Joseph D’Alessandro (January 29, 2001), p. 260.

      . Id, D’Alessandro dep. (December 7, 2000), p. 106.


author: KLEINFELTER, P.J.,

text:
    Shpiglov v. Detrova

      C.P. of Dauphin County,
    no. 2432 S 2001.

      Albert N. Peterlin, for plaintiff.

      Robert S. Mirin, for defendants.
    February 26, 2002
   KLEINFELTER, P.J.,

Before the court is the motion for summary judgment of defendants Lina Detrova and Valery Detrova in this breach of contract case. For the reasons set forth below, the motion is denied.

This case finds its beginnings sometime in March of 1995. At that time, Irina Detrova, the cousin of plaintiff Semyon Shpiglov, was interested in purchasing a home, but did not have sufficient funds for the required down payment. Hearing of Irina’s predicament, Shpiglov agreed to provide her with $10,000. However, the terms of this transfer are what spawned the instant dispute.

Shpiglov claims that the $10,000 represented a loan to Irina Detrova to be repaid upon demand when he needed the money; yet, no writing exists representing such an agreement. The Detrovas counter that the $10,000 provided by Shpiglov was a gift, and that no repayment was either expected or required.

In November 1997, Shpiglov claims that he was in need of funds, and demanded repayment of the $10,000. In February of 1998, Shpiglov claims that the Detrovas wired $100 to Shpiglov’s joint bank account. In addition, Shpiglov maintains that two $100 payments were made to his daughter, Victoria Peterlin, sometime in 1999. Shpiglov provides an affidavit of Mrs. Peterlin stating that the Detrovas described these payments as payment on the $10,000 loan. These payments, according to Shpiglov, are an acknowledgment that the $10,000 was in fact a loan, not a gift as the Detrovas contend. The Detrovas, on the other hand, argue that these small payments were gifts to Shpiglov’s wife, who was having financial difficulties, and in no way represent acknowledgment of a $10,000 debt to Shpiglov.

Shpiglov filed a complaint on May 25, 2001. Following the Detrovas’ preliminary objections, an amended complaint was received on July 10, 2001, alleging express breach of oral agreement (Count I) and unjust enrichment (Count II). The Detrovas filed an answer with new matter on August 2, 2001, which alleged defenses of statute of limitations and statute of frauds. Thereafter, the Detrovas filed the instant motion for summary judgment on October 5, 2001. Shpiglov filed a response on October 26, 2001. Each party filed a brief in support of their position and oral argument was presented to the court on February 7, 2002.

“[SJummary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ... Summary judgment may be granted only in those cases where the right is clear and free from doubt. . . . The moving party has the burden of proving that there is no genuine issue of material fact.... Moreover, the record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party....” Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 73-74, 658 A.2d 423, 425 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995), see also, Robinson v. Lower Paxton Township, 119 Dauph. 259 (2000).

The crux of the Detrovas’ argument is that even if the transfer of the $10,000 is deemed to be a contract, any action for recovery by Shpiglov is barred by the statute of limitations. Shpiglov, on the other hand, contends that the loan was not payable until the occurrence of a condition precedent to demand for payment; namely, Shpiglov could not demand payment until he needed the money, which in turn started the statute of limitations. In addition, Shpiglov claims that the statute of limitations was tolled when he demanded payment. Finally, the statute of limitations was also tolled, according to Shpiglov, when the Detrovas acknowledged the $10,000 loan by making payments.

The statute of limitations for contracts in Pennsylvania is set forth in 42 Pa.C.S. §5225:

“The following actions and proceedings must be commenced within four years:...
“(3) An action upon an express contract not founded upon an instrument in writing.
“(4) An action upon a contract implied in law, except an action subject to another limitation specified in this subchapter....”

Unfortunately, the appellate case law in this area is sparse. Both parties cite Gurenlian v. Gurenlian, 407 Pa. Super. 102, 595 A.2d 145 (1991), which we deem to be controlling.

“ ‘ [Wjhere the contract is to pay on the future performance of a condition... or at a certain time after demand, there a demand is necessary to a right of action,’ and the statute of limitations does not begin running until demand is made. Cook v. Carpenter (No. 1), 212 Pa. 165, 175, 61 A. 799, 803 (1905).2 ‘The statute of limitations on a demand note does not begin to run until demand or a payment on principal or interest is made or until judgment is entered on the debt.’ Lazzarotti v. Juliano, 322 Pa. Super. 129, 469 A.2d 216 (1983).” Gurenlian, 407 Pa. Super. at 112-13, 595 A.2d at 150.

Footnote 2, referenced above, reads:

“In such cases where a demand is necessary to perfect the cause of action and the time of the demand is within the plaintiff’s control, the demand must be made within a reasonable time. Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943). The plaintiff cannot ‘arrest the running of the statute ... for his own convenience.’ Id., 346 Pa. at 670, 31 A.2d at 550....”

The Gurenlian court continued:

“A promise to pay a dept may toll the statute of limitations. ... The promise to pay may be express, or it may be implied from an acknowledgment of the debt. . . . However, ‘ [b]oth promises to pay and acknowledgments of indebtedness must be unequivocal and unconditional’ to take the case out of the statute of limitations. Receiver of Anthracite Tr. Co. v. Loughran, 341 Pa. 142, 144, 19 A.2d 61, 62 (1941).
“A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute. There must, however, be no uncertainty either in the acknowledgment or in the identification of the debt; and the acknowledgment must be plainly referable to the very debt upon which the action is based; and also must be consistent with a promise to pay on demand and not accompanied by other expressions indicating a mere willingness to pay at a future time. A simple declaration of an intention to discharge an obligation is not the equivalent of a promise to pay, but is more in the nature of a desire to do so, from which there is no implication of a promise.
“Maniatakis’ Estate, 258 Pa. 11, 15, 101 A. 920, 921 (1917). (citations omitted) Statements which are equivocal concerning a promise to pay or which do not clearly identify the debt do not toll the statute of limitations.” Gurenlian, 407 Pa. Super. at 114-15, 595 A.2d at 151.

Applying Gurenlian to the matter at bar, we find that if this transaction was indeed a contract, the statute of limitations began to run when Shpiglov demanded payment when he needed the money. Considering the facts in a light most favorable to the non-moving party, we note that the $10,000 was transacted in March of 1995, payable on demand when Shpiglov needed the money. In November 1997, Shpiglov fell into financial misfortune and demanded payment on the alleged loan. This demand triggered the statute of limitations, which at four years would expire — at the latest — on November 30, 2001. Since Shpiglov filed this cause of action on May 25,2001, it is well within the four-year statute of limitations set forth in 42 Pa.C.S. §5225.

Notwithstanding our finding that this cause of action has been brought within the appropriate statute of limitations period, we are left with the fundamental question of this case — was this a loan or a gift? Even the most casual inquiry yields numerous factual issues dependent upon the testimony of the parties involved. We simply cannot decide this as a matter of law and thus deny the Detrovas’ motion for summary judgment.

Accordingly, we enter the following:

ORDER

And now, February 26, 2002, upon consideration of the motion for summary judgment submitted by defendants Irina Degtyarov a/k/a Irina Detrova and Valery Degtyarov a/k/a Valery Detrova, said motion is hereby denied.

      . Incidentally, we reject Shpiglov’s contention that the statute of limitations was tolled by the Detrovas’ acknowledgment of the loan. As we learned from Gurenlian, supra, to toll the statute of limitations, any acknowledgment must be “unequivocal and unconditional.” Here, the Detrovas flatly deny any acknowledgment of debt and instead claim that the payments were merely gifts to assist Shpiglov’s wife in a time of financial distress.
      We also patently reject Shpiglov’s claim that a demand for payment tolled the statute of limitations. Again, Gurenlian instructs that a demand for payment sets the statute of limitations running; it does not toll the statute.


author: NANOVIC, J.,

text:
    Passalacqua v. Passalacqua

      C.P. of Carbon County,
    no. 99-1997.

      Joseph Perilli, for plaintiff.

      Michelle Wolfe and William G. Schwab, for defendants.
    January 28, 2002
   NANOVIC, J.,

Before the court is plaintiff’s motion to vacate the judgment of non pros entered by the Carbon County Prothonotary’s office on June 8, 2001, pursuant to this court’s order dated April 11, 2001. For the reasons which follow, this motion is denied.

• Frank Passalacqua, the plaintiff in these proceedings, commenced this action pro se by the filing of a complaint on October 6, 1999. The complaint did not contain a notice to defend.

The basis of the action is an alleged sale of jewelry by Passalacqua to the defendants on or about January 1, 1996, for which Passalacqua was to be paid one payment of $10,600 on January 1, 1998. This amount, Passalacqua claims, was not paid. Service of the complaint was made upon defendants by first class mail on or before August 9, 1999. (See affidavit of service of David Seth Kaiser dated August 9, 1999, and filed on October 6,1999.) This date of service predates the filing of the complaint by approximately two months.

Preliminary objections, raising a variety of issues, were filed on June 9, 2000, and sustained, in full, by court order dated October 24, 2000. Of importance to this decision, included in the preliminary objections was a challenge to the manner of service of the complaint. The order dated October 24, 2000, granted Passalacqua leave to file an amended complaint within 30 days and further advised that failure to file an amended complaint would result in dismissal of the complaint.

Passalacqua filed an amended complaint on November 15,2000. This amended complaint was served, again by first class mail, on defendants and their counsel on or before November 8, 2000. (See affidavit of service of David Seth Kaiser dated November 8, 2000, and filed on November 15, 2000.)

Preliminary objections raising the same issues contained in defendants’ preliminary objections to the original complaint were filed on February 9, 2001. By order dated April 11, 2001, the preliminary objections were sustained as to the defective service of the amended complaint and denied as to the remaining objections. This order specifically directed Passalacqua to “have the amended complaint reinstated within 30 days from the date of this order and [to] have said complaint properly served by the sheriff’s office within 30 days from the date of such reinstatement, failing which plaintiff’s complaint, upon praecipe of defendants, [would] be dismissed with prejudice.”

Passalacqua did not reinstate the amended complaint after April 11,2001, nor, according to the docket entries, did Passalacqua make arrangements with the Carbon County Sheriff’s office for service of the amended complaint by direct or deputized service. (See Pa.R.C.P. 400(a), (d) (service of original process ordinarily to be made by sheriff) and Pa.R.C.P. 405(a) (return of service).) Following the entry of the order dated April 11, 2001, the next entry on the prothonotary’s docket is defendants’ praecipe for judgment of non pros filed on June 8, 2001. This praecipe was granted as of right by the prothonotary on the same date.

In Passalacqua’s motion to vacate the judgment of non pros, Passalacqua asserts that the amended complaint was served on defendants by the Montgomery County Sheriff’s office on March 26, 2001, prior to the court’s order of April 11, 2001. Other than this purported service of the amended complaint on defendants, the only other grounds for relief set forth in Passalacqua’s motion is that the entry of judgment of non pros was made “in clear error.”

A rule to show cause, returnable within 20 days, was issued by the court on July 13, 2001. This rule further provided that the petition would be decided under Pa.R.C.P. 206.7. Defendants filed their answer to the motion on July 23, 2001. In this answer, defendants denied that the amended complaint was properly reinstated and served upon defendants. The answer further denied, as a conclusion of law, Passalacqua’s assertion that the entry of judgment of non pros was made “in clear error.” No transcripts of depositions in support of the motion were filed or presented to the court; argument on the motion was held on November 21, 2001.

Initially, defendants argue that a challenge to a judgment of non pros must be made by direct appeal to the Superior Court, rather than a motion to the trial court in the first instance and, therefore, this court should not address the merits of Passalacqua’s motion. While previously uncertainty existed as to the proper manner to challenge the entry of a judgment of non pros, this uncertainty was recently settled by the Pennsylvania Supreme Court in Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996 (2001). In Sahutsky, the court held that Pa.R.C.P. 3051 requires a party seeking appellate review of a judgment of non pros, whether or not entered with prejudice, to first file a petition to open the judgment with the trial court.

Defendants next argue that Passalacqua’s motion is procedurally defective, fails to identify the grounds for relief, and, consequently, fails to preserve any issues for review. This argument has merit.

Rule 3051 requires that relief from a judgment of non pros shall be sought by petition and that all grounds for relief must be asserted in a single petition. The petition is required to allege facts showing (1) the timely filing of the petition; (2) a reasonable explanation or legitimate excuse for the inactivity or delay; (3) a meritorious cause of action. Pa.R.C.P. 3051(b). Petition practice further requires that a petition state the material facts which constitute the grounds for relief. Pa.R.C.P. 206.1(a). When the answer to a petition raises disputed issues of material fact, and no depositions or other discovery have been taken by the petitioner with respect to such issues, the petition is to be decided on the petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer are deemed admitted. Pa.R.C.P. 206.7(c).

Passalacqua’s motion fails to identify the basis for his claim that the entry of judgment of non pros was “in clear error” and fails to allege any facts explaining why he failed to comply with the court’s order of April 11, 2001. Passalacqua’s motion on its face is patently inadequate. Nor did Passalacqua develop a record to support the boilerplate averment that the judgment of non pros was entered in error. Compare Perri v. Broad Street Hospital, 330 Pa. Super. 50, 478 A.2d 1344 (1984).

Passalacqua’s decision, until recently, to proceed pro se does not absolve him of responsibility to comply with procedural rules, impose an affirmative duty on the opposing party or the court to instruct him on procedure, or require the court to ignore the procedural requirements in order to reach the merits of his claim. In affirming the trial court’s entry of a judgment of non pros against a pro se litigant, and noting that the allegations of the litigant’s petition to open were appallingly vague and conclusory and did not reasonably explain the delay in filing the petition or aver facts to establish a legitimate cause of action, the Pennsylvania Superior Court stated:

“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” Jones v. Rudenstein, 401 Pa. Super. 400, 404, 585 A.2d 520, 522 (1991), appeal denied, 529 Pa. 634, 600 A.2d 954 (1991), quoting Farretta v. California, 422 U.S. 806, 834 n.46, 95 S.Ct. 2525, 2540 n.46, 45 L.Ed.2d 562, 581 n.46 (1975). In failing to identify any alleged grounds for error in the entry of the judgment of non pros, Passalacqua failed to preserve any issues of error. This failure is fatal to his motion and requires its denial.

Turning to the arguable merits of Passalacqua’s motion, two interrelated issues need to be addressed: (1) is dismissal of a lawsuit ordinarily a proper remedy for defective service; and (2) is dismissal of a lawsuit for defective service appropriate when the plaintiff has been given the opportunity to correct the defect and failed to do so after being advised that his failure would result in a judgment of non pros and, in the interim, the passage of the statute of limitations would render the lawsuit nonviable.

The first issue has been answered for the most part by Collins v. Park, 423 Pa. Super. 601, 606, 621 A.2d 996, 999 (1993), appeal denied, 536 Pa. 618, 637 A.2d 278 (1993):

“Where service of process is defective, the proper remedy is to set aside the service. In that event, the action remains open, but it cannot proceed against a defendant unless the plaintiff can thereafter effect service on such defendant which is sufficient to vest jurisdiction in the court.”

Consistent with Collins, this court’s order of April 11, 2001, set aside service of the amended complaint by first class mail and allowed Passalacqua to attempt to effect proper service of process which would vest jurisdiction in the court. See also, Weaver v. Martin, 440 Pa. Super. 185, 193, 655 A.2d 180, 184 (1995). (The proper remedy for defective service is to set aside the service and provide the plaintiff with an opportunity to effect proper service.)

As recognized in Collins, valid service is a prerequisite to a court acquiring personal jurisdiction over a defendant.

“Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. . . . Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. . . . Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her.” Cintas Corp. v. Lee’s Cleaning Services Inc., 549 Pa. 84, 91, 700 A.2d 915, 917-18 (1997). (citations omitted)

The significance of valid service, however, is not limited to acquiring jurisdiction over the defendant and providing defendant with notice of the action. Service of process is a fundamental step in completing the progression of events by which an action is commenced. Witherspoon v. City of Philadelphia, 564 Pa. 388, 397, 768 A.2d 1079, 1084 (2001).

In Lamp v. Heyman, 469 Pa. 465, 478, 366 A.2d 882, 889 (1976), the Supreme Court determined that “a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The court further stated that “a plaintiff should comply with local practice as to delivery of the writ to the sheriff for service.” Id. Subsequently, in Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 594, 511 A.2d 757, 759 (1986), the Supreme Court reiterated and refined its decision in Lamp by stating that “Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action.”

What constitutes a good-faith effort to serve legal process is a matter to be determined by the court in its sound discretion on a case-by-case basis. Id. at 594, 511 A.2d at 759. In effect, the Supreme Court determined in Lamp and Farinacci that while an action may be “commenced” by the filing of a praecipe for a writ of summons, service, or at least a good-faith attempt at service, is a condition subsequent that must be fulfilled to complete the commencement of the action begun by filing the praecipe. Witherspoon v. City of Philadelphia, 564 Pa. 388, 395, 768 A.2d 1079, 1083 (2001).

In Witherspoon, plaintiff commenced an action by the filing of a praecipe for a writ of summons within one week prior to the expiration of the statute of limitations and, within 30 days thereafter, made one unsuccessful attempt at service through a private process server. Approximately eight months after filing his praecipe, a complaint was filed and properly served within 30 days. Prior to service of the complaint, however, no further attempts to serve the writ were made. Preliminary objections asserting that the failure to serve the writ within 30 days as required by Pa.R.C.P. 401(a), or reissue it pursuant to Pa.R.C.P. 401(b)(1), were sustained by the trial court. Service of the complaint was stricken, effectively terminating plaintiff’s action on account of the statute of limitations. The Pennsylvania Supreme Court affirmed this result and found that the trial court did not abuse its discretion in granting the defendant’s preliminary objections. In so finding, the court stated:

“Given the importance of service of original process in completing the progression of events by which an action is commenced, we deem it necessary that where that progression ‘straddles the line’ of the limitation period the process must be served within the time allowed by the Rules of Civil Procedure or, if service cannot be made, the process must be immediately and continually reissued until service is made. Although Pa.R.C.P. 401(b)(2) states that ‘[a] writ may be reissued or a complaint reinstated at any time and any number of times’ (emphasis added), this cannot be construed to permit the reissuance of a writ or reinstatement of a complaint to ‘revive’ an action as to which the limitation period has expired.” Witherspoon v. City of Philadelphia, 564 Pa. at 398, 768 A.2d at 1084. (footnote omitted)

Although arguably Passalacqua’s service of the complaint and amended complaint, albeit defective, exhibited a “good-faith effort to effectuate notice of commencement of the action” upon defendants, and in fact did provide actual notice to defendants, Passalacqua’s failure thereafter to reinstate the complaint and effect proper service after being explicitly instructed by this court to do so in its order of April 11,2001, evidenced a “course of conduct which [served] to stall in its tracks the legal machinery he [had] set in motion.” Without reinstatement of the complaint and proper service, personal jurisdiction over the defendants could not be obtained and the ability of the lawsuit to proceed was prevented. Even though a “good-faith” effort to notify a defendant of the institution of a lawsuit must be established, the thrust of all inquiry is whether a plaintiff engaged in a “course of conduct” forestalling the legal machinery put in motion by his filings. Leidich v. Franklin, 394 Pa. Super. 302, 311, 575 A.2d 914, 918 (1990), appeal denied, 526 Pa. 636, 584 A.2d 319 (1990). “Good-faith” must be established in tandem with the absence of a “course of conduct” attributable to the plaintiff evidencing a stalling of the machinery of justice. Id. at 314, 575 A.2d at 920; Moses v. T.N.T. Redstar Express, 725 A.2d 792, 798, 799 (Pa. Super. 1999), appeal denied, 559 Pa. 686,739 A.2d 1058 (1999). Passalacqua’s decision to represent himself was unwise; his decision to ignore this court’s order of April 11, 2001, was inexcusable.

Witherspoon instructs that a plaintiff must make continuous efforts to serve the defendant in order to meet the “good-faith” standard. In ignoring the directions of this court as set forth in the order of April 11, 2001, Passalacqua has not met this standard and did so knowing that his failure to comply would result in dismissal of his action. Consequently, whatever conduct Passalacqua may have argued extended the period of the statute of limitations by tolling, ceased prior to the running of the limitations period which expired on January 1, 2002. 42 Pa.C.S. §5525 (four-year statute of limitations ordinarily applicable to claims upon a contract). With passage of the original statute of limitations and the abolition of the “equivalent period” doctrine in Witherspoon, Passalacqua’s ability to reinstate the amended complaint ended. The interrelationship of Pennsylvania Rules of Civil Procedure 400,402 and 401(b)(2) which otherwise, when construed in pari materia, bar the court from dismissing a complaint on the basis of defective service alone, reinforce a dismissal in this case. Trzcinski v. Prudential, 409 Pa. Super. 114, 120, 597 A.2d 687, 690 (1991); Green v. Vinglas, 431 Pa. Super. 58, 635 A.2d 1070 (1993), appeal denied, 540 Pa. 583, 655 A.2d 515 (1995).

For the forgoing reasons, we find that Passalacqua has failed to offer a satisfactory excuse for not complying with this court’s order of April 11, 2001, and we enter the following:

ORDER

And now, January 28, 2002, it is hereby ordered and decreed that the motion of the plaintiff, Frank Passalacqua, to vacate the entry of judgment non pros entered on June 8, 2001, is denied.

It is further ordered and decreed that this court’s order dated April 11, 2001, is hereby revised and amended to correctly reflect the striking of the affidavit of service filed on November 15,2000, with respect to the amended complaint, rather than the affidavit of service filed on March 6, 2001, with respect to Passalacqua’s brief in opposition to defendants’ preliminary objections.

      . Preliminarily, there can be little dispute that the manner of service chosen by plaintiff for original process, namely service by first class mail, was defective. Pa.R.C.P. 400(a), with exceptions not relevant to this case, requires that original process shall be served within the Commonwealth only by the sheriff. If service is to be made by the sheriff in a county other than the county in which the action was commenced, the sheriff of the county where service may be made shall be deputized for that purpose by the sheriff of the county where the action was commenced. Pa.R.C.P. 400(d). Defendants properly challenged the form of service of the complaint by preliminary objections. Pa.R.C.P. 1028(a)(1).

      . The authority of the court to permit the entry of a judgment of non pros after providing a plaintiff with an opportunity , to correct defective service is believed to be inherent in the power of the court to manage its docket and prevent cases from remaining stagnant and becoming stale. A court’s power to dismiss cases for inactivity, after notice to the parties: “originated in common law, prior to the passage of any statute. Waring v. The Pennsylvania Railroad Company, 176 Pa. 172, 35 A. 106 (1896). The court’s ability to enter a non pros is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the common pleas court calendar. See Link v. Wabash Railroad Company, 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962) (authority of a court to dismiss for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases).” Captline v. County of Allegheny, 553 Pa. 92, 718 A.2d 273, 275 (1998).
      Prejudice to the other side need not be established in order to have a claim dismissed for failing to comply with a court order. While a party seeking to obtain a judgment of non pros on a claim which has been timely filed and properly served must demonstrate unfair prejudice by the failure of the other party to prosecute the claim in a timely manner, prejudice need not be established where a party seeks dismissal of a writ or complaint for failure to effectuate service. Moses v. T.N.T Redstar Express, 725 A.2d 792, 800 (Pa. Super. 1999), appeal denied, 559 Pa. 686,739 A.2d 1058 (1999). Compare also the concurring opinion of Judge Hoffman in Lewis v. Reid, 244 Pa. Super. 76, 86, 366 A.2d 923, 927-28 (1976), in which Judge Hoffman noted two basic situations in which judgments of non pros are entered — where a plaintiff has failed to comply with a court order and where a plaintiff has failed to prosecute his action within a reasonable time — and stating that prejudice need not be demonstrated in the first instance but that prejudice must be established in the latter context. In this case, at the time the judgment of non pros was entered, the statute of limitations had not run and Passalacqua suffered no prejudice in being able to commence a new suit.

      . A photocopy of a document captioned “Order for service” attached to Passalacqua’s motion appears to indicate that a deputy from the sheriff’s office in Montgomery County served something designated as “other” on the form on the defendant, Joseph Istavanick, by personal service in the Montgomery County Courthouse on March 23, 2001, and on the defendant, Elaine Passalacqua, by service on her husband, Joseph Istavanick, in the Montgomery County Courthouse on the same date. The document does not contain any original certifications, attestations, or filing stamps and the authenticity of the document is unknown. Accepting for purposes of argument the inference that Passalacqua made arrangements directly with the sheriff’s office of Montgomery County for service of the amended complaint on defendants, the service remained defective since the amended complaint was not reinstated prior to service, the Montgomery County Sheriff’s office was not deputized to make service by the Carbon County Sheriff’s office and the rules for service do not permit personal service upon a defendant by service upon the defendant’s spouse at a location other than the defendant’s residence. Most importantly, this purported service occurred prior to the order of April 11,2001. Passalacqua took no steps after April 11, 2001, to reinstate the complaint or effectuate proper service.

      . Counsel for Passalacqua first became involved in this matter at the time of argument on Passalacqua’s motion to vacate.

      . In addressing these merits, the court does not intend to excuse or overlook the procedural deficiencies in Passalacqua’s motion which, as previously indicated, form the basis of its denial, but to indicate that notwithstanding the procedural inadequacies, the motion is without merit.
      The Pennsylvania Superior Court has also recently reaffirmed its deference to the manner in which it reviews a trial court’s exercise of its discretion with respect to a request to open a judgment of non pros:
      “Initially, we note our well-settled standard of review.
      “A request to open a judgment of non pros is by way of grace and not of right and its grant or refusal is peculiarly a matter for the [trial] court’s discretion. We are loathe to reverse the exercise of the court’s equitable powers unless an abuse of discretion is clearly evident. Before a petition to open a judgment of non pros may be granted, the moving party must (1) promptly file a petition to open, (2) present a reasonable explanation or excuse for the default or delay that precipitated the non pros, and (3) establish that there are sufficient facts to support a cause of action.” MacKintosh-Hemphill Intern. Inc. v. Gulf & Western Inc., 451 Pa. Super. 385, 679 A.2d 1275, 1278-79 (1996), appeal denied, 548 Pa. 637, 694 A.2d 622 (1997). Kruis v. McKenna, 790 A.2d 322, 324-25 (Pa. Super. 2001).

      . The court’s order of April 11,2001, clearly sustained defendants’ preliminary objections to defective service of the amended complaint but incorrectly struck the affidavit of service filed on March 6, 2001 (this affidavit relates to service of Passalacqua’s brief in opposition to the preliminary objections) rather than the affidavit of service filed on November 15, 2000, with respect to the amended complaint. This error has been corrected in the order attached to this opinion.

      . The same reasoning applies when suit is “commenced” by the filing of a complaint, as in this case, rather than a praecipe for writ of summons. Pannill v. Seaborne, 278 Pa. Super. 562, 568, 420 A.2d 684, 687 (1980).

      . At a minimum, the good-faith effort required in Lamp v. Heyman, mandates compliance with the Pennsylvania Rules of Procedure and local practice. Cahill v. Schults, 434 Pa. Super. 332, 643 A.2d 121 (1994); Feher by Feher v. Altman, 357 Pa. Super. 50, 54, 515 A.2d 317, 319 (1986), appeal denied, 515 Pa. 622, 531 A.2d 430 (1987).
      In Green v. Vinglas, 431 Pa. Super. 58, 635 A.2d 1070 (1993), appeal denied, 540 Pa. 583, 655 A.2d 515 (1995), the court upheld the dismissal of plaintiff’s suit, with prejudice, finding that plaintiff’s filing of a praecipe for a writ of summons did not toll the statute of limitations where plaintiff failed to obtain timely service of the writ due to her unwitting failure to prepay the sheriff’s office for deputized service as required by local practice. See also, Patterson v. American Bosh Corp., 914 F.2d 384 (3d Cir. 1990).
      However, in Leidich v. Franklin, 394 Pa. Super. 302, 575 A.2d 914 (1990), appeal denied, 526 Pa. 636, 584 A.2d 319 (1990), under the special circumstances present in that case, plaintiffs were found to have exercised good faith by promptly serving a copy of the writ of summons upon the defendant by first class mail. See also, Fulco v. Shaffer, 455 Pa. Super. 30, 686 A.2d 1330 (1996), and Young v. PennDOT, 690 A.2d 1300 (Pa. Commw. 1997).
      Nevertheless, the Superior Court explicitly cautioned in Leidich that its decision was not intended to signal to the bench and bar the court’s approval of the circumvention of the Pennsylvania Rules of Civil Procedure and local practice but was confined to the particular facts in Leidich where “Lamp’s ‘good-faith’ effort to notify the defendants was established in tandem with the absence of a ‘course of conduct’ attributable to the plaintiff evidencing a stalling of the machinery of justice.” Here, Passalacqua’s serving “notice” of a lawsuit two months prior to commencement of the action, while subject to consideration, does not require a finding of good faith since the action had not yet been commenced; Passalacqua could have changed his mind and elected not to sue after having given such notice. Compare, Witherspoon v. City of Philadelphia, 564 Pa. 388, 392, 768 A.2d 1079, 1081 (2001). Moreover, Passalacqua’s filing and service of the amended complaint following defendants’ original preliminary objections and supporting brief specifically challenging not the timeliness of service, but the manner of service, put Passalacqua on notice of a need to make personal service. Additionally, it has long been the established practice in Carbon County when a plaintiff commences an action by complaint that the plaintiff is responsible for delivering the complaint to the sheriff’s office with instructions for service and the payment of proper fees. All of these facts weigh against a “good-faith” finding even prior to Passalacqua’s decision to ignore the directions of the April 11, 2001 order.