text:
    Brogan v. Rosenn, Jenkins & Greenwald, LLP

      C.P. of Lawrence County,
    No. 11250 of 2010, C.A..

      Michael J. Kenny, for plaintiffs

      James J. Wilson, for defendants Rosenn, Jenkins & Greenwald, LLP and David F. Chuff

      David R. Cherundolo, for defendants SBP Abstracting and Anthony J. Popeck Stephen G. Bresset, for defendant Conestoga Title Insurance Co.
    April 22, 2013
   NEALON, J.,

MEMORANDUM AND ORDER

Plaintiffs’ discovery motion, which seeks to compel a deponent to produce her Facebook username and password, presents a social media discovery issue of first impression in Lackawanna County. To obtain discovery of private information contained on social networking sites, a party must, at a minimum, demonstrate that the information sought is relevant, and the requestor may establish the requisite relevancy by showing that publicly accessible information published by the user on the social networking account arguably controverts the account holder’s claims or defenses in the underlying action. In addition, social media discovery requests must be properly framed with reasonable particularity so that only relevant and non-privileged information is sought and produced. Since plaintiffs have not established the relevance of the deponent’s private Facebook information, and their demand for her username and password is overly intrusive and would cause unreasonable embarrassment and burden for her, their motion to compel will be denied.

I. FACTUAL BACKGROUND

Plaintiffs, Thomas Brogan and Wendy Brogan (“the Brogans”), commenced this civil action against their former counsel, defendants David F. Chuff, Esquire (“Chuff’), and Rosenn, Jenkins & Greenwald, LLP (“Rosenn”), title searcher, defendant Anthony J. Popeck t/a SBP Abstracting (“Popeck”), and title insurer, defendant Conestoga Title Insurance Company (“Conestoga”), after the Brogans purchased a property which, allegedly unbeknownst to them, was encumbered by a utility easement for a 42” water main passing through the property. (Docket entry no. 11 at ¶¶ 18, 20-23, 36). The Brograns contend that Pennsylvania Gas & Water Company (“PG&W”) holds a duly recorded easement prohibiting any structures within thirty (30) feet of the easement, as a result of which they allegedly must construct their sewer and water lines at least eight feet beneath the PG&W water main. (Id. at ¶¶ 44, 46-47, 49). The Brogans assert that Chuff, Rosenn and Popeck negligently failed to discover the recorded easement, and in their complaint, the Brogans advance causes of action for legal malpractice by Chuff and Rosenn, (Id. at ¶¶ 68-83, 88-98), negligent supervision by Rosenn, (Id. at ¶¶ 84-87), negligence by Popeck, (Id. at ¶¶99-105), and breach of contract, bad faith liability and negligent misrepresentation by Conestoga. (Id. at ¶¶ 1 Ob-135).

Chuff and Rosenn maintain that they hired and relied upon Popeck to search the title, and may not be held liable for that independent contractor’s alleged failure to discover the easement. (Docket entry no. 46 at ¶¶ 1-5). Popeck avers that he discovered the existence of “an easement situation” and advised Chuff and Rosenn of the same, and that the Brogans had “actual knowledge of the easement/right-of-way and contrary to the advice given by Chuff and Rosenn,...decided to close the property transaction anyway.” (Docket entry no. 62 at ¶¶23, 104). Conestoga admits that a title insurance policy was issued in conjunction with the purchase of the property, but denies that the Brogans’ title defect claim is covered by the terms of the policy. (Docket entry no. 69 at ¶¶108-124).

Despite the relatively straightforward and uncomplicated nature of the claims and defenses at issue, this litigation has been mired in perpetual discovery disputes which have generated an inordinate number of filings that have unduly taxed the available judicial resources of Lackawanna County. Under Local Rule 4000.1, all discovery motions must initially be presented to and decided by the court-appointed special trial master who entertains discovery motions every Monday and Thursday. See Lacka. Co. R.C.P. 4000.1(a), (c). The special trial master’s discovery ruling may be appealed de novo to the court of common pleas pursuant to Lacka. Co. R.C.P. 4000.1(b), upon the filing of a timely discovery appeal and the payment of an appeal fee of $120.50. See Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533 (Lacka. Co. 2012).

Virtually all discovery disputes in Lackawanna County are resolved by the special trial master without the subsequent filing of a de novo appeal. In 2011, 3,837 new civil cases were filed in Lackawanna County, but only twenty-eight (28) de novo discovery appeals were filed under Lacka. Co. R.C.P. 4000.1(b). (See Lackawanna County Court of Common Pleas 2011 Case Load Statistics Report to Administrative Office of Pennsylvania Courts, at p. 3 (Oct. 19,2012)). However, of those twenty-eight (28) de novo discovery appeals in 2011, ten (10) were filed by the Brogans and one (1) was filed by Conestoga. (Docket entry nos. 84,100,103,104,108,124,125,135,138,151, 153). Thus, almost 40% of the Lackawanna County de novo discovery appeals in 2011 involved this single case.

Due to the excessive number of discovery appeals, Chuff and Rosenn sought exceptional relief from the President Judge of Lackawanna County by presenting a “Motion for Assignment of Judge for Discovery Proceedings.” (Docket entry no. 156). Chuff and Rosenn averred that although “[t]his is a fairly straightforward case that does not require anywhere near the discovery, particularly the discovery motion practice and appeals, pursued by [the Brogans],” the parties have become “embroiled in seemingly endless discovery battles.” (Id. at ¶¶5, 11). Chuff and Rosenn posited that if the President Judge “assigned one judge to hear all discovery proceedings, it would eliminate the numerous appeals which have greatly slowed the resolution of this case.” (Id. at ¶13).

By order dated January 13, 2012, President Judge Thomas J. Munley appointed the undersigned “to hear and rule upon all motions and matters relating to discovery” in this case. (Docket entry no. 156 at p. 1). Since that time, the Brogans have filed twenty-four (24) additional discovery motions, (Docket entry nos. 166-167,183,187-188, 190-193, 195, 197-205, 211, 214, 217), and Popeck and Conestoga have each filed motions for protective Orders to prohibit certain discovery being sought by the Brogans. (Docket entry nos. 194, 218). The Brogans’ discovery motions have included such unsuccessful requests as the Brogans’ motion to compel Chuff to provide an interrogatory answer which he had already attested that he did not know, (Docket entry no. 166), their motion to compel a witness to appear for a deposition on a scheduled date even though the deponent’s physician had stated in writing that “it would not be in his best medical interest” to do so on that exact date, (Docket entry no. 187), and their motion to compel Conestoga to produce former employees for depositions at Conestoga’s own expense. (Docket entry no. 167). To date, the undersigned has been required to issue eleven (11) separate discovery rulings disposing of more than two dozen discovery motions and sanctions requests. (Docket entry nos. 160, 163-164, 169, 184, 196,212,232-235).

The Brogans’ latest discovery motion concerns their demand for the Facebook log-in name, username and password for a paralegal in Conestoga’s claims department. On December 4, 2012, the Brogans deposed Conestoga’s former Director of Claims & Recovery, Gregory L. Amand (“Amand”), who testified that he communicated via Facebook with a Conestoga paralegal, Rebecca Brown Breault (“Breault”), regarding his deposition subpoena. Amand indicated that he and Breault exchanged brief, private messages on Facebook in which Breault suggested that Amand contact Conestoga’s counsel in advance of his deposition to discuss the Brogans’ title insurance claim which had been denied by Conestoga. (Deposition of Greg Amand dated 12/4/12 at pp. 33-34, 36-37). Amand testified that he never contacted Conestoga’s counsel prior to his deposition. (Id. at p. 36).

Breault was deposed by the Brogans’ counsel on the following day, December 5, 2012, at which time she was asked to identify the current and former employees of Conestoga who were her “friends” on Facebook at that time. (Deposition of Rebecca Breault dated 12/5/12 at p. 34). Breault did not identify Amand as one of the ex-employees of Conestoga who was her “friend” on Facebook. (Id. at pp. 34-35). However, Breault was never “asked during her deposition whether she had ever communicated or corresponded with Amand [on Facebook] regarding the subpoena he received.” (Transcript of proceedings (“T.P.”) on 3/26/13 at pp. 32-33).

Conestoga has produced the four brief Facebook messages that were exchanged by Breault and Amand relative to his deposition subpoena, but has rejected the Brogans’ demand for Breault’s Facebook username and password. (Docket entry no. 236). The Brogans have filed a “Motion to Compel Conestoga to Provide to Plaintiffs Conestoga Employee Rebecca Breault’s Facebook Log-In Name(s) and Usemame(s) and Password(s).” (Docket entry no. 191). The crux of the Brogans’ relevancy argument is that the depositions of Breault and Amand are irreconcilably inconsistent in that Amand testified that they exchanged private messages on Facebook, whereas Breault did not identify Amand as a Facebook “friend.” (T.P. 3/26/13 at pp. 33-34). Conestoga submits that the Brogans are not entitled to Breault’s private Facebook username and password, and argues that the Brogans’ discovery request for that information is “yet another ‘fishing expedition’.” (Docket entry no. 226 at p. 5). Following the completion of oral argument on March 26, 2013, the Brogans’ discovery motion was submitted for a decision.

II. DISCUSSION

(A) STANDARD OF REVIEW

“The trial court is responsible for overseeing discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measures to insure adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.” Rohm and Haas Company v. Lin. 992 A.2d 132, 143 (Pa. Super. 2010), cert. denied, 132 S.Ct. 852 (U.S. 2011). Under Pa.R.C.P. 4003.1, “discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” Berg v. Nationwide Mutual Insurance Company, Inc., 44 A.3d 1164, 1178 n. 8 (Pa. Super. 2012); Ferguson v. Ghigiarelli, 2012 WL 5376702, at * 3 (Lacka. Co. 2012). Information is relevant “if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.” Smith v. Morrison, 42 A.3d 131, 137 (Pa. Super. 2012), app. denied, 57 A.3d 71 (Pa. 2012); Scranton Laminated Label, Inc. v. Florimonte, 2013 WL 1345805, at *8 (Lacka. Co. 2013).

The relevancy standard applicable to discovery is necessarily broader than the standard used at trial for the admission of evidence. Com. v. TAP Pharmaceutical Products, Inc., 904 A.2d 986, 994 (Pa. Cmwlth. 2006); George v. Schirra, 814, A.2d 202, 205 (Pa. Super. 2002). The party objecting to discovery generally bears the burden of establishing that the requested information is not relevant or discoverable. Koken v. One Beacon Insurance Company, 911 A.2d 1021, 1025 (Pa. Cmwlth. 2006); Yadouga v. Cruciani, 66 Pa. D. & C. 4th 164, 168 (Lacka. Co. 2004). Any doubts regarding relevancy are to be resolved in favor of discovery. Ario v. Deloitte & Touche, LLP, 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007); Koken, supra; Yadouga, supra.

(B) SOCIAL NETWORKING SITE DISCOVERY

In support of their attempt to secure Breault’s Facebook username and password, the Brogans assert that Amand “admitted that he and Breault discussed the Brogan matter on Facebook,” which the Brogans characterize as “[a]n assertion Breault evades by not naming him as a ‘friend’ during her deposition.” (Docket entry no. 208 at p. 2). The Brogans contend that “Breault’s contradiction of Amand’s admission calls into question the veracity of her testimony,” and submit that “[i]f she provided false testimony in this regard, she may have also hidden the extent of her Conestoga-related contacts on Facebook and their communications.” (Id. at pp. 2-3). Based upon this reasoning, the Brogans argue that they have established “a threshold showing of relevance” for their discovery since “Breault’s potential untruthfulness concerning Amand could lead to the discovery of additional Facebook friends she declined to mention and conversations held about the Brogans’ claim.” (Id. at p. 5).

Citing Koken and its directive that “a court can prohibit the discovery of matters which...would amount to a ‘fishing expedition,’” Koken, 911 A.2d at 1025, Conestoga opposes the Brogans’ requested discovery on that basis. (Docket entry no. 226 at p. 5). Additionally, Conestoga broadly objects to the request for Facebook discovery on the ground that it seeks information that is protected from discovery by a general right of privacy. (Id. at p.4 (“Rebecca Breault is not and never has been at a management level of [Conestoga] and has not lost her privacy rights merely because her employer is a party to litigation.”)). To date, no Pennsylvania appellate court has addressed the discovery of private information contained on Facebook and other social networking sites. Nor has a Lackawanna County judge had occasion to consider this social media discoveiy issue in civil litigation.

Several Pennsylvania trial courts have considered litigants’ discovery efforts to gain access to non-public information contained on a party’s social networking account. Those decisions generally recognize that a party seeking discovery of private social media information must demonstrate a threshold showing of relevance by articulating some facts, gleaned from the publicly accessible portions of the user’s social networking account, which suggest that pertinent information may be contained on the non-public portions of the member’s account. See Hoy v. Holmes, 107 Schuylkill L. Rev. 19, 23 (2013) (“We agree that a factual predicate has to be shown by the party seeking discovery for non-public information posted on social media. Such a factual predicate has not been identified in the present motion to compel. The mere allegation that a lawsuit has been commenced against the defendant and that the plaintiffs are claiming certain damages does not identify nor establish such a factual predicate.”); Simms v. Lewis, 2012 WL 6755098, at *2 (Indiana Co. 2012) (noting that the plaintiff claiming permanent injuries had referenced attendance at a Zumba Fitness class, reasoning that “[ajttending a fitness class is relevant, as it directly relates to plaintiff’s claim that she has suffered a severe injury,” and holding that “[bjased upon the information contained in a post visible on her public page, it is reasonable to infer that the non-public portion of plaintiff’s account may contain additional relevant evidence.”); Trail v. Lesko, 2012 WL 2864004, at *7 (Alleg. Co. 2012) (“The courts [of common pleas] recognize the need for a threshold showing of relevance prior to discovery of any kind, and have nearly all required a party seeking discovery in these cases to articulate some facts that suggest relevant information may be contained within the non-public portions of the profile [footnote omitted]. To this end, the courts have relied on information contained in the publicly available portions of a user’s profile to form a basis for further discovery.”); Arcq v. Fields, No. 2008-2430, Herman, P. J., at p. 3 (Franklin Co. 2011) (“While it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that the defendant have some good faith belief that the private profile may contain information. Here, Defendant had no reason to believe so, therefore, the Motion to Compel will be denied.”); Largent v. Reed, 2011 WL 5632688, at * 5 (Franklin Co. 2011) (granting defense request to compel plaintiff to divulge her Facebook username and password since she had claimed damages for “permanent physical and mental injuries” and the public portion of her “Facebook account included status updates about exercising at a gym and photographs depicting her with her family that undermine her claim for damages.”); Zimmerman v. Weis Markets, Inc., 2011 WL 2065410, at * 4 (Northumberland Co. 2011) (compelling plaintiff to provide social media usernames and passwords since “[bjased on a review of the publicly accessible portions of his Facebook and My Space accounts, there is a reasonable likelihood of additional relevant and material information on the non-public portions of these sites.”); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285, at * 4 (Jefferson Co. 2010) (“McMillan has alleged significant and substantial injuries, some which he claims may be permanent. Accessing only the public portions of his Facebook page, however, the defendants have discovered posts they contend show that McMillan has exaggerated his injuries. Certainly a lack of injury and inability is relevant to their defense, and it is reasonable to assume that McMillan may have made additional observations about his travels and activities in private posts not currently available to the defendants.”). Two additional trial court orders have granted requests for discovery of social media information, albeit without expressly indicating whether they applied a threshold relevancy test based upon information that the users had disclosed on the publicly viewable portions of their profiles. See Mazzarella v. Mount Airy #1, LLC, No. 1798 CV 2009, Williamson, J. (Monroe Co. Nov. 7,2012); Gallagher v. Urbanovich, No. 2010-33418, Carpenter, J. (Montg. Co. Feb. 27, 2012).

Those Pennsylvania trial court rulings, which have considered social media users’ assertions that social networking information is protected from discovery based upon the users’ right of privacy or some recognized privilege, have uniformally rejected that argument. See Hoy, 107 Schuylkill L. R. at 23 (“There exists no constitutional right of privacy that prohibits the type of discovery sought concerning social media nor is such social media protected by an established privilege.”); Mazzarella, supra (“Furthermore, plaintiff’s argument of an expectation of privacy regarding her use of social media is misplaced. Those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy.”); Simms, supra, at *2 (“By definition, the purpose of social networking sites is to share information. The court finds that Plaintiff cannot maintain a reasonable expectation of privacy when she created the account and voluntarily posted this information, knowing that the information could become publicly available.”); Largent, supra, at *5 (“Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information.”); Zimmerman, supra, at *4 (“In view of the sound, logical approach of the court in Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (Suffolk Co. 2010)], this court is likewise persuaded that the argument of Zimmerman that his privacy interests outweigh the discovery requests is unavailing.”); McMillen, supra, at * 3 (“When a user communicates through Facebook or My Space, however, he or she understands and tacitly submits to the possibility that a third party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate. That fact is wholly incommensurate with a claim of confidentiality.”). Federal district courts have similarly declined to recognize a social media user’s right of privacy or an established privilege which completely immunizes the account holder’s private electronic information from discovery. See e.g. Potts v. Dollar Tree Stores, Inc., 2013 WL 1176504, at *3 (M.D. Term. 2013); Howell v. Buckeye Ranch, Inc., 2012 WL 5265170, at *1 (S.D. Oh. 2012); Davenport v. State Farm Mutual Automobile Insurance Company, 2012 WL 555759, at * 1 (M.D. Fla. 2012); Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (“I agree that material posted on a ‘private’ Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil notions of privacy.”). Not unlike the Pennsylvania trial court decisions, federal rulings have allowed discovery of private information contained on a social networking site based upon a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence since the publicly available information on the site undermines the user’s claims or defenses in litigation. See Potts, supra; (“The defendant lacks any evidentiary showing that plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence.”); Keller v. National Farmers Union Property & Casualty Company, 2013 WL 27731, at * 4 (D. Mont. 2013); (“But National Farmers Union has not come forward with any evidence that the content of either of the plaintiffs’ public postings in anyway undermines their claims in this case.”); Mailholt v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012); Tompkins, 278 F.R.D. at 388 (“If the plaintiff’s public Facebook page contained pictures of her playing golfing or riding horseback, defendant might have a stronger argument for delving into the nonpublic section of her account. But based on what has been provided to this court, defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”).

(1) Relevancy Requirement

Although the digital era has spawned novel evidentiary and discovery questions, those issues have been analyzed and resolved based upon well-settled legal principles governing conventional forms of evidence and discovery. See e.g. Com. v. Serge, 586 Pa. 671, 685-686, 896 A.2d 1170, 1178-79 (2006) (like traditional demonstrative evidence, a computer-generated animation is admissible as a demonstrative exhibit under Pa.R.E. 401, 403 and 901 if it (1) is properly authenticated as a fair and accurate representation of the evidence it purports to portray, (2) is relevant, and (3) has a probative value that is not outweighed by the danger of unfair prejudice), cert. denied, 549 U.S. 920 (2006); Com. v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) (holding that text messages on cellular telephone were inadmissible since they had not been properly authenticated under Pa.R.E. 901, and concluding “that authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person.”), app. granted, 44 A.3d 1147 (Pa. 2012); Brooks v. Frattaroli, 2009 WL 7419028, at * 4 (Leb. Co. 2009) (granting protective order prohibiting discovery of “all metadata, all internet queries, all deleted files and all stored files” on party’s computers, and finding that the electronic discovery request was “overly broad” and burdensome under Pa.R.C.P. 4011(b)). Under the Pennsylvania Rules of Civil Procedure, a party is not entitled to discovery unless the requestor first demonstrates that the information or material sought is relevant or “reasonably calculated to lead to the discovery of admissible evidence.” See Cooper v. Schoffstall, 588 Pa. 505, 522, 905 A.2d 482,493 (2006) (citing Pa.R.C.P. 4003.1 (b)); Barrickv. Holy Spirit Hospital of Sisters of Christian Charity, 32 A.3d 800,809 (Pa. Super. 2011) (quotingPa.R.C.P. 4003.\{b)),app. granted, 52A.3d 221 (Pa. 2012). Consistent with that firmly established discovery maxim, a party may obtain discovery of private Facebook posts, photographs and communications only if the electronically stored information is relevant, and the party may satisfy that relevancy requirement by showing that publicly accessible information posted on the user’s Facebook page controverts or challenges the user’s claims or defenses in the pending litigation. To that extent, the resolution of social media discovery disputes pursuant to existing Rules of Procedure is simply new wine in an old bottle.

The Brogans have not established that Breault published information on the publicly viewable portion of her Facebook account which refutes or questions the veracity of her assertions in this case. The Brogans contend that they have satisfied the relevancy requirement since Amand’s testimony that he exchanged Facebook messages with Breault is allegedly at variance with Breault’s failure to identify Amand as a Facebook “friend” during her deposition. However, it is not necessary for Facebook users to be “friends” in order to exchange electronic messages on Facebook. {Sending a Message, Facebook Help Center, Facebook, http://www.facebook.com/help/ messages#!/help/326534794098501/(last visited April 18, 2013); Settings & Security, Facebook Flelp Center, Facebook, http://www.facebook.eom/help/messages#! help/580504375298594/ (last visited April 18, 2013)). Hence, the Brogans’ relevance argument is predicated upon the faulty premise that Amand and Breault could only exchange Facebook messages if they had accepted each other as Facebook “friends.” The Brogans offer no other claim of relevance with respect to Breault’s private Facebook information. Absent a showing of potential relevance, the Brogans are not entitled to their requested discovery of Breault’s Facebook username and password.

(2) Reasonable Particularity Requirement

Even if the Brogans had made the requisite relevancy showing in support of their request for access to Breault’s Facebook account, their demand for discovery of Breault’s username and password would be nonetheless denied as overly broad and unduly invasive. See Feldman v. Ide, 915 A.2d 1208, 1212 (Pa. Super. 207) (discovery request seeking disclosure of medical expert’s forensic income information for last five year was overly broad). The Brogans do not request copies of Facebook messages concerning specific subjects during particular time periods. See e.g., Anthony v. Atlantic Group, Inc., 2012 WL 4009490, at * 3 (D.S.C. 2012) (requiring plaintiffs “to produce social networking data (“SND”), electronically stored information (“ESI”), and electronic mail (“email”) related to plaintiffs’ residences or receipt of per diem,” and noting that “[t]he requests do not seek broad disclosure of any and all SND, ESI, and email, but instead, narrowly define the responsive information as only those portions of Plaintiffs’ SND, ESI and email which directly relate to the issues raised in this case.”); Keller, supra, at *3 (defendant sought printout of photographs posted by plaintiff during certain time period). Rather, the Brogans seek to compel Breault to provide them with her Facebook username and password so that the Brogans may have unbridled access to any and all information contained on Breault’s Facebook account.

A party seeking the production of documents and things, or requesting the right to enter upon the property of a party or non-party, must describe the requested materials or the property to be entered “with reasonable particularity.” See Pa.R.C.P. 4009.11 (request for production of documents and things must identify “the items to be produced either by individual item or by category, and describe each or category with reasonable particularity.”); Pa.R.C.P. 4009.32 and 4009.33 (discovery requests to enter the property of a party or non-party must “describe with reasonable particularity the property to be entered and the activities to be performed.”). In the context of social networking sites, a party “does not have a generalized right to rummage at will through information that [another party] has limited from public view.” Tompkins, 278 F.R.D. at 388; Potts, supra, at *3; Keller, supra, at *4; Mailholt, 285 F.R.D. at 570; Davenport, supra, at *2. “Otherwise, the [party] would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in [the other party’s] Facebook account.” Tompkins, supra (emphasis in original); Potts, supra; Keller, supra; Mailholt, 285 F.R.D. at 572; Davenport, supra, at *1.

Although a few common pleas courts have required plaintiffs to provide the defense with their Facebook usernames and passwords based upon a threshold showing of relevance, see, e.g., Largent, supra, Zimmerman, supra, McMillen, supra, other federal district courts have deemed such requests too broad and lacking “reasonable particularity” under Fed. R. Civ. R 34(b)(1)(A). See Howell, supra, at * 1 (“Howell’s username and password would gain defendants access to all the information in the private sections of her social media accounts - - relevant and irrelevant alike....Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”); Tompkins, 278 F.R.D. at 389 (“Moreover, the request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad.”); Holter v. Wells Fargo and Company, 281 F.R.D. 340, 344 (D. Minn. 2011) (“Plaintiff will not be required to provide defendant with any passwords or usernames to any social websites, so that defendant can conduct its own search and review. Just as the court would not give defendant the ability to come into plaintiff’s home or peruse her computer to search for possible relevant information, the Court will not allow defendant to review social media content to determine what it deems is relevant.”). Accord Winchell v. Lopiccolo, 38 Misc. 3d 458, 462, 954 N.Y.S.2d 421, 424 (Orange Co. 2012) (distinguishing Romano v. Steelcase, Inc., supra, and holding that “[t]he court finds that defendants’ request for unrestricted access to Plaintiff’s Facebook page is overbroad.”). Those courts have instead required more narrowly tailored discovery requests which do not constitute digital fishing expeditions. See Potts, supra, at *3 (directing the parties to “agree to a word search of Plaintiff’s computer by an agreed neutral party to assess whether Plaintiff’s computer contains relevant information.”); Mailholt, 285 F.R.D. at 572 (concluding that a request for “any pictures of Plaintiff taken during the relevant time period, and posted on Plaintiffs profile or tagged or otherwise linked to her profile, is impermissibly overbroad.”); Davenport, supra, at *2 (“As the subject request for photographs seeks production of every photograph added to every [social networking site] SNS since the date of the subject accident, it is overly broad on its face and not reasonably calculatedto lead to the discovery of admissible evidence.”). In addition, some federal courts have conducted an in camera review of the social networking data to determine whether any information is subject to discovery, see Offenback v. L. M. Bowman, Inc., 2011 WL 2491371, at * 2 (M.D. Pa. 2011), or have appointed special electronic discoveiy masters to oversee electronic discovery and to establish protocols for electronic searches and assertions of privileges and objections. See Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346, at * 1-2 (E.D. Pa. 2008).

A discovery request seeking carte blanche access to private social networking information is overly intrusive, would cause unreasonable embarrassment and burden in contravention of Pa.R.C.P. 4011(b), and is not properly tailored “with reasonable particularity” as required by the Pennsylvania Rules of Civil Procedure. While a limited degree of “fishing” is to be expected with certain discovery requests, parties are not permitted “to fish with a net rather than with a hook or a harpoon.” Brownstein v. Philadelphia Transp. Co., 46 Pa. D. & C. 2d 463, 464 (Phila. Co. 1969). For example, the defense in personal injury litigation has the right to demand production of photographs portraying an allegedly disabled claimant engaging in unrestricted physical activity, but is not entitled to personally rifle through every photo album or electronic folder of digital photographs that the claimant possesses in the hope that the defense may discover a relevant photograph. If the Brogans obtain Breault’s Facebook username and password, they would have an unrestricted license to peruse her entire Facebook account, and view highly sensitive information and potentially confidential communications that have no relevance to this lawsuit, including comments that were authored by third parties such as her Facebook “friends.” Consequently, the Brogans’ demand for production of Breault’s Facebook username and password is too broad and not the proper method by which to obtain social networking information in a civil case. As a result, the Brogans’ motion seeking to compel a party, Conestoga, to provide an employee’s Facebook log-in name, username and password will be denied.

ORDER

And now, April 22, 2013, upon consideration of plaintiffs’ “motion to compel Conestoga [Title Insurance Company] to provide to plaintiffs Conestoga employee Rebecca Breault’s Facebook log-in name(s) and usemame(s) and password(s),” the memoranda of law submitted by the parties, and the oral argument of counsel on March 26, 2013, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that plaintiffs’ “motion to compel Conestoga to provide to plaintiffs Conestoga employee Rebecca Breault’s Facebook log-in name(s) and usemame(s) and password(s)” is denied.

      . Conestoga had filed a second de novo discovery appeal on February 23, 2011, but later withdrew that appeal on April 8, 2011 (Docket entry nos. 88, 94).

      . The social networking site “Facebook” enables account holders to designate their “friends” by inviting another user to become a member’s “friend.” The recipient is free to accept or reject the “friend” request. See State v. Altajir, 303 Conn. 304, 306 n. 1, 33 A.3d 193, 196 n. 1 (2012). The Facebook user controls the degree of access that a “friend” may have to the user’s posts, photographs or other information. Leonard & Hendry, From Peoria to Peru: NLRB Doctrine in a Social Media World, 63 Syracuse L. Rev. 199,202 (2013) (citing Facebook Help Center, http://www.facebook.com/help/). “Facebook users may decide to keep their profiles completely private, share them only with ‘friends’ or more expansively with ‘friends of friends,’ or disseminate them to the public at large.” U.S. v. Meregildo, 883 F.Supp.2d 523, 525 (S.D.N.Y. 2012) (citing Facebook Help Center, http://www.facebook.com/help/ privacy). See also Sluss v. Com., 381 S.W.3d 215, 227 n. 12 (Ken. 2012) (“Depending on what privacy settings a user has, some information may be entirely concealed, such as with whom that user is ‘friends.’”). Facebook recently renamed its setting permitting disclosure to any viewer from “Everyone” to “Public,” thereby advising account holders “that the setting allows public viewing beyond Facebook users.” Haynes, Virtual Blinds: Finding Online Privacy in Offline Precedents, 14 Vand. J. Ent. & Tech. L. 603, 642 (Spring 2012) (citing Statement of Rights and Responsibilities, Facebook, http://www.facebook.com/terms.php).

      . A comprehensive chronology of Pennsylvania trial court orders and opinions addressing this issue can be found on the website, Torttalk, at http://www.tortTalk.com/2012/01/facebook-discovery-scorecard. html, and the Social Media Law Center’s list that has been published by The Legal Intelligencer at http://www.law.com/jsp/pa/PubArticlePA. jsp?hubtype=main_PAGE&id=T202594569711.

        . Some commentators have opined that if an online social network user employs a privacy setting, the courts should recognize the user’s “reasonable expectations of privacy” and ensure that the online social network’s representations “that the user can control how content and information she posts is shared through privacy and application settings...are more than empty words.” Haynes, 14 Vand. J. Ent. & Tech. L. at 648. See also Boyden, Oversharing: Facebook Discovery and The Unbearable Sameness of Internet Law, 65 Ark. L. Rev. 39, 55-56 (2012) (“[I]t is also true that Facebook, My Space, and other social-networking sites make no promise to keep one’s posts, comments, and other materials confidential. But that does not mean there are not any privacy interests at stake at all. It is hardly the case that sharing information with a limited number of people removes all privacy interests from that information.... The burden on the plaintiff..., including the burden on the plaintiff’s privacy and social relationships, must still be balanced against the need for the discovery even if the requested information is relevant.”). But see, Patterson v. Turner Construction Co., 88 A.D. 3d 617, 618, 931 N.Y.S. 2d 311, 312 (N.Y. App. Divis. 1st Dept. 2011) (“The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.”).

      . In light of the denial of the Brogans’ discovery motion based upon Pa.R.C.P. 4003.1(a), 4009.11(b) and 4011 (b), it is unnecessary to address Conestoga’s alternate objection regarding the propriety of compelling social media discovery from a non-party. See Juror Number One v. Superior Court, 206 Cal. App. 4th 854, 868, 142 Cal. Rptr. 3d 151, 161-162 (Cal. Ct. App. 2012) (holding that trial court did not exceed its authority to investigate alleged juror misconduct by requiring juror, who admittedly posted comments on Facebook about evidence during trial and invited responsive comments by Facebook “friends,” to execute a consent form authorizing Facebook to release juror’s postings for in camera review by court), rehearing denied, 2012 WL 2393996 (Cal. Ct. App. June 15, 2012), petition for review denied, No. S203713 (Cal. Aug. 22,2012).


source: Caselaw Access Project

author: OVERTON, J.,

license: Public Domain

text:
    Prime Group Remediation, Inc. v. T. Lomax & Associates, Inc.

      Daniel R. Sulman and Margaret M. Underwood, for plaintiff

      John T. Asher, III, for defendant
    February 20, 2013
   OVERTON, J.,

This matter is before the appellate court in response to the order reproduced below, issued on November 2, 2012.

Upon consideration of the post-trial motions of the defendant, T. Lomax & Associates, Inc., and any opposition thereto, it is hereby ordered that the motions are denied.

T. Lomax and Associates, Inc. filed an appeal.

FACTS

Prime Group Remediation, Inc., (hereinafter “Prime”) andT.LomaxandAssociates,Inc.,(hereinafter“appellant”) entered into an oral contract for asbestos remediation at the Bluford School located in Philadelphia, Pennsylvania. The parties agreed that Prime would be paid $75,000 for the asbestos remediation. The contract was negotiated on the appellant’s behalf by Paul Mikalic, who was employed by Prime at the time.

Prime completed its work at the Bluford School on or about August 31, 2009. Prime, through its officers, executed a partial release on or about October 22, 2009. The release was prepared by Keating General Contractors (hereinafter “Keating”) and did not release the appellant but did release the School District of Philadelphia, Keating, and Federal Insurance Company. No general releases were executed.

Prime received $67,500.00 for its work it had completed, leaving a claim for retainage of $7,500.00. Prime sent two (2) invoices; one dated July 21, 2009 and the second dated August 18, 2009. Both invoices listed a retainage. The appellant did not deny the receipt of these invoices. Vincent J. Primavera, Jr., Vice President of Prime, testified that the retainage was not due until completion of the entire project.

Mr. Mikalic, who had left Prime’s employ and began for the appellant, testified that Prime failed to remove a trailer that Prime used to depose of the asbestos waste in a timely fashion. The trailer was said to be physically preventing any additional work to be done on the project. The appellant claimed a breach by Prime’s failure to remove the disposal trailer. Consequently, Mr. Mikalic decided to hire USA Environmental Management Inc. to complete the work on behalf of the appellant because of his perceived breach by Prime. Prime conceded that they were responsible for the cost of the trailer removal which was $2,400.00.

PROCEDURAL HISTORY

On August 9,2011, plaintiff, Prime Group Remediation, Inc. (“Prime”) filed a complaint for breach of contract against defendant, T. Lomax and Associates, Inc. (“appellant”). Prime alleged that the appellant failed to pay Prime the entire amount of their contract, which was $75,000.

On May 7, 2012, the appellant filed a motion for summary judgment. On June 13, 2012, the Honorable Idee C. Fox denied the appellant’s motion for summary judgment.

On October 17,2012, this court found in favor of Prime. On November 2, 2012, this court denied the appellant’s post-trial motion. On December 6, 2012, appellant filed a timely appeal. Statements of matters complained of on appeal were requested and properly tendered on January 2, 2013. Appellant raised the following issues in its statement of matters Complained of on appeal pursuant to Pa. R.A.P. 1925 (b):

1. The court erred in denying Lomax’s motion for summary judgment in its order of June 13, 2012;
2. The court erred in denying Lomax’s motion for summary judgment by failing to deem Lomax’s new matter admitted due to the plaintiff, Prime Group Remediation, Inc.’s (“Prime”) failure to respond to same;
3. The court erred in denying Lomax’s motion for summary judgment by failing to deem Lomax’s requests for admissions, which were served on January 20, 2012, admitted due to Prime’s responding to same on Februaiy 23, 2012, two weeks after responses were due under PA.R.C.P. No. 4014;
4. The court erred in denying Lomax’s motion for summary judgment in failing to estopp Prime from contradicting its prior testimony in the Philadelphia Municipal Court under claim #SC-11-01-25-5949 that it had not performed work at the Bluford School project after August 31, 2009;
5. The court erred in denying Lomax’s summary judgment motion and at trial in not finding that the sub-contractor and material supplier’s partial release of claims and liens affidavit and the subcontract’s partial rlease of claims and liens applied to bar Prime from seeking any additional monies from Lomax for the Bluford School project other than the $67,500.00 paid by Lomax to Prime;
6. The court erred in denying Lomax’s summary judgment motion and at trial in not finding that Prime was stopped from arguing that it was owed any money over the $67,500.00 paid to it by Lomax because prime admitted in the sub-subcontractor and material supplier’s partial release of claims and liens affidavit that it had been paid in full by Lomax through August 31,2009.
7. The court erred at trial in not granting Lomax’s request at trial for a compulsory non-suit based upon the language of the sub-contractor and material suppier’s partial release of claims and liens affidavit and the subcontractor’s partial release of claims and liens;
8. The court erred by awarding $2,000.00 to Prime at trial for the award was not based on facts of record, but was based on pure speculation and conjecture, and was improper;
9. The court erred at trial by refusing to permit Lomax offer evidence regarding performing work at another location and monies incurred for materials;
10. The court erred at trial by finding that Lomax breach its contract with Prime;
11. The court’s finding at trial that there was retainage was against the weight of the evidence; and,
12. Since the trial court’s order denying Lomax’s post trial motions, docketed on November 6, 2012, did not set forth the basis for the court’s ruling, Lomax further states that the trial court erred in denying the appellants’ post-trial motions seeking a compulsory non-suit, that the verdict be set aside, and/or awarding a new trial and reserve its right to file a supplemental statement in response to the trial court’s Rule 1925(a) opinion.

This opinion is offered in response to said appeal.

DISCUSSION

Appellant’s claims are discussed in turn and are without merit.

A. Appellant’s claims 1, 2, 3, and 4 were not preserved for appellate review.

Appellant’s claims 1,2, 3, and 4 were not preserved for appellate review and consequently are deemed waived. On October 31, 2012, the appellant filed a post-trial motion with this court. However, that motion did not include any of the aforementioned claims. Therefore, these claims were not preserved for appellate review and are deemed waived. See Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54, (Pa. 1998) (“Pa. R. Civ. P.227.1 requires parties to file post-trial motions in order to preserve issues for appeal. If an issue has not been raised in a post-trial motion, it is waived for appeal purposes”).

B. In claims 5, 6, and 10, appellant appears to challenge the sufficiency of the evidence supporting this court’s findings.

Each challenge is without merit and will be addressed in turn.

‘“A sufficiency [of evidence] analysis... must begin by accepting the credibility and reliability of all evidence, viewed in the light most favorable to the verdict winner regardless of whether the appellant thinks that the evidence was believable.’” Imperial Excavating and Paving, LLC v. Rizzetto Const. Management, Inc., 935 A.2d 557, 560 (Pa. Super. 2007) (citation omitted).

i. Whether the court erred at trial in not finding that the Sub-Contractor and Material Supplier’s Partial Release ofClaims and Liens Affidavit and the Subcontract’s Partial Release of Claims and Liens applied to bar Prime from seeking any additional monies from Lomax for the Bluford School Project other than the $67,500.00 paid by Lomax to Prime.

In this instance, Prime and the appellant entered into an oral contract for asbestos remediation. Per that contact Prime would be paid $75,000.00 for the asbestos remediation. Both parties agreed that Prime only received $67,500.00 for its services. The record reflects that the sub-contractor and material supplier’s partial release of claims and liens affidavit only released and discharged the School District of Philadelphia, Daniel J. Keating Company, and the Federal Insurance Company, not the appellant. Further, the release itself states that it is only a “partial release of claims and liens.” Viewing this evidence in the light most favorable to Prime, as the verdict winner, this court finds that evidence to have been sufficient to establish that the release did not bar Prime from pursuing any outstanding monies owed to them under the oral contract from the appellant. Therefore, this claim is without merit.

ii. Whether the court erred at trial in not finding that Prime was stopped from arguing that it was owed any money over the $67,500.00 paid to it by Lomax because Prime admitted in the Sub-subcontractor and Material Supplier’s Partial release of Claims and Liens Affidavit that it had been paid in full by Lomax through August 31, 2009.

For the aforementioned reasons stated in the above subsection “I”, this claim is also without merit.

iii. Whether the court erred at trial by finding that Lomax breached its contract with Prime.

Here, neither party challenged the validity of the contract. Both parties agreed that per the contract, Prime would be paid $75,000.00 for the asbestos remediation. Prime presented testimony that they completed the asbestos remediation. Further, there is uncontroverted evidence in the record that Prime only received $67,500.00 for their services. Prime presented evidence that a bill was sent to the appellant on 12/9/2009 requesting the outstanding balance of $7,500.00. Prime also presented evidence that payment was requested again on 6/21/2010. Appellant did not challenge the receipt of these requests for payment. However, Prime never received payment from the appellant. Viewing this evidence in the light most favorable to Prime, as the verdict winner, this court finds this evidence to have been sufficient to establish that the appellant breached the oral contract between the parties when the appellant failed to pay Prime the agreed contract price. Therefore, this claim is without merit.

C. Whether the court erred at trial in not granting Lomax’s request at trial for a compulsory non-suit based upon the language of the Sub-Contractor and Material Suppier’s Partial Release of Claims and Liens Affidavit and the Subcontractor’s Partial Release of Claims and Liens.

The standard of review of an order granting a compulsory non-suit is well-settled:

Amotion for compulsoiy non-suit allows a defendant to test the sufficiency of a plaintiffs’ evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. Hatbob v. Brown, 394 Pa. Super. 234, 575 A.2d 607 (1990). When so viewed, anon-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action; it is the duty of the trial court to make this determination prior to the submission of the case to the jury. Id. When this court reviews the grant of a non-suit, we must resolve all conflicts in the evidence in favor of the party against whom the non-suit was entered. Eisenhauer v. Clock Towers Associates, 399 Pa. Super. 238, 582 A.2d 33 (1990).

Taliferro v. Johns-Manville Corp., 421 Pa. Super. 204, 617 A.2d 796, 799 (1992). See also Poleri v. Salkind, 683 A.2d 649, 653 (Pa. Super. Ct. 1996)

A compulsory non-suit is proper only where the facts and circumstances compel the conclusion that the defendants are not liable upon the cause of action pleaded by the plaintiff. United National Ins. Co. v. J.H. France Refractories Co., 417 Pa. Super. 614, ,612 A.2d 1371, 1374 (1992), rev’d. on other grounds, Pa., 668 A.2d 120 (1995) (reversing on statute of limitations issue).

Here, neither party contested the validity of the oral contract or the contract price. Further, both Prime and the appellant agreed that Prime was only paid $67,500.00, which was $7,500.00 less than the agreed contract price of $75,000.00. Prime presented evidence that it completed all of the asbestos remediation work that was required by the oral contract. Prime also presented evidence that they requested payment for the remaining balance from the appellant at least two times and at the time of trial Prime had yet to receive that payment. Therefore, giving Prime the benefit of all reasonable inferences arising from the evidence, this court found that Prime produced sufficient evidence to withstand the appellant’s non-suit motions. Therefore, this claim is without merit.

D. Whether the court erred by awarding $2,000.00 to Prime at trial for the award was not based on facts of record, but was based on pure speculation and conjecture, and was improper.

In this matter, Prime received $67,500.00, leaving $7,500.00 on the contract. Prime conceded that it was responsible for $2,400.00 related to the trailer removal. The appellant hired USA Environmental Management, Inc., to perform the remaining abatement work for $4,500. The principals of US A Environmental were not identified nor was the scope of their work. Accordingly, as this court stated during trial, since USA Environmental was new to the project, its cost would be higher conceivably than what Prime had already contracted for. Taking that factor into account, this court fashioned a judgment that would reflect that. Therefore, this claim is without merit.

E. The court erred at trial by refusing to permit Lomax offer evidence regarding performing work at another location and monies incurred for materials.

The decision of whether or not to admit evidence is committed to the sound discretion of the trial court and will only be reversed upon a showing that the trial court clearly abused its discretion in admitting evidence. See Commonwealth v. Kennedy, 959 A.2d 916, 923 (Pa. 2008) (Citing Commonwealth v. King, 721 A.2d 763, 772-773 (1998)).

“An abuse of discretion is not merely an error in judgment, but an ‘overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.”’ Commonwealth v. Flamer, 53 A.3d 82, 86. (citation omitted).

In this instance, appellant’s counsel attempted to introduce the evidence of prior projects that Prime and the appellant had conducted together by way of the testimony of Paul Mikalic. Appellant’s counsel’s reason for attempting to do such was that he felt that his client had been slandered. As this court stated during trial, the issue in this matter was whether or not there was a breach of the contract between the parties. Evidence of any prior dealings to rebut alleged slanderous testimony had no tendency to make the existence of any fact that was of consequence to the determination of whether or not there was a breach of contract in this case more probable or less probable, therefore, said evidence was not relevant. Pa.R.Evid. 401.

Accordingly, this court’s decision not to allow such evidence was not an ‘overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality.” Flamer, 53 A.3d at 86. Therefore, this claim is without merit.

F. Whether the court’s finding at trial that there was retainage was against the weight of the evidence.

Appellant’s claims that this court’s finding was against the weight of the evidence is without merit. “The general rule in this Commonwealth is that a weight of the evidence claim is primarily addressed to the discretion of the judge who actually presided at trial. [T]he authority of the trial judge to upset a verdict premised upon a weight claim is narrowly circumscribed. A trial judge cannot grant a new trial ‘because of a mere conflict in testimony.’” Armbruster v. Horowitz 813 A.2d 698, 702 - 3 (2002) (citation omitted). Instead, “a new trial should be granted only in truly extraordinary circumstances, i.e., ‘when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.’” Id. at 703 (emphasis original) (citation omitted).

As previously mentioned, there is uncontroverted evidence in the record that there existed a contract between the parties, in which Prime would be paid $75,000.00 for asbestos remediation. Further, Mr. Primavera, Jr. testified that it was customary in this particular line business for the party paying the sub-contractor to withhold a retainage for punch list items and that the retainage is then released after the entire job is complete and the punch list items are taken care of by the sub-contractor. Mr. Primavera, Jr. also testified that Prime sent two invoices; the first one was sent when the job was 50% complete and the second one was sent when the job was 100% complete. Both invoices explicitly stated that 10% retainage was being withheld from the payment, which resulted in Prime being paid $67,500.00. Both, Prime and the appellant, acknowledge that Prime was only paid $67,500.00. Lastly, it is uncontested that Prime was never presented with a punch list.

Accordingly, given that evidence, this court’s finding that there was a retainage was not so contrary to the evidence to shock one’s sense of justice. Therefore this claim is without merit.

G. Whether the Trial court erred in denying the appellants ’post-trial motions.

Those issues appellant raised and properly preserved in its post-trial motion were addressed within this opinion. Therefore, this claim is without merit.

CONCLUSION

The court’s order dated November 2, 2012, denying appellant’s post-trial motion should be affirmed.

      . This statement of facts is a restatement of this court’s factual findings. See N.T. 10/16/12 at p. 221 - 225.

      . In fact, appellant failed to preserve any issues regarding its motion for summary judgment in its post-trial motion.

      . As mention in section A, appellant failed to preserve any issues regarding its motion for summary judgment, therefore, this court will only address those issues from trial that have been properly preserved.

      . See N.T. 10/16/12 at p. 173.


author: NEALON, J.,

text:
    Pittsman v. Perrone

      C.R of Lackawana County,
    No. 11 CV 1236.

      Kevin J. Fitzgerald, for plaintiff.

      Neil E. Wenner, for defendants.
    April 11, 2013
   NEALON, J.,

Relying upon the expiration of the one-year statute of limitations under 42 Pa.C.S.A. § 5523(1), the healthcare defendants’ motion for summary judgment seeks to dismiss plaintiff’s claims for defamation and tortious interference with business relations on the grounds that both causes of action are predicated upon the same operative facts and are, therefore, governed by the same one-year limitations period. Plaintiffs binding judicial admissions reflect that the gist of his tortious interference claim is defendants’ alleged defamatory acts of concluding that plaintiff was not physically qualified to operate commercial motor vehicles and communicating that medical diagnosis to his prospective employer. Since plaintiff has not averred an independent, non-defamatoiy basis for his tortious interference claim, the defamation and tortious interference actions are both subject to the one-year statute of limitations and were clearly time-barred when this suit was filed. Therefore, defendants’ motion for summary judgment will be granted.

I. FACTUAL BACKGROUND

On February 23, 2011, plaintiff, David Pittsman (“Pittsman”), filed this civil action against defendants, Dr. David Perrone (“Perrone”) and Redi-Care Medical Center of Taylor, Inc. (“Redi-Care”), based upon a medical examination that Dr. Perrone conducted of Pittsman in connection with his application for employment with Bolus Freight. Pittsman avers that on February 24, 2009, he “was a licensed over the road truck driver in possession of a Class A driver’s license” when he “made application for [a] position as an over the road truck driver with Bolus Freight.” (Docket entry no. 1 at ¶¶ 5-6). At “the request of Chris Burris of Bolus Freight, [Pittsman] reported for a physical examination at Redi-Care...and was examined by Dr. David Perrone.” (Id. at ¶ 7). During that examination, “but prior to Dr. Perrone’s determination regarding [Pittsman’s] ability to perform his duties as an over the road truck driver with a Pennsylvania Class A driver’s license, Dr. Perrone made a phone call to Chris Burris regarding [Pittsman’s] status.” (Id. at ¶ 8). Pittsman has admitted that he was not present during this alleged phone call, nor does he have “first hand knowledge” of what was purportedly discussed at that time.: (Deposition of David Pittsman dated 8/13/12 at pp. 113-114).

Pittsman asserts that “[a]fter Dr. Perrone’s conversation with Chris Burris of Bolus Freight on February 24, 2009, Dr. Perrone refused to certify [Pittsman] as able to drive a commercial vehicle without a Skill Performance Evaluation (“SPE”) certificate indicating that [Pittsman] did not meet the standards of 49 C.F.R. [§]391.41.” (Docket entry no. 1 at ¶ 9). Pittsman further contends that another medical group previously certified him for employment as a truck driver without the necessity of an SPE certificate. (Id. at ¶ 10). He maintains that Dr. Perrone’s refusal to properly certify him to drive a commercial vehicle resulted in his “inability to secure employment with Bolus Freight” and required him “to seek employment elsewhere” with Crete Carrier/Shaffer Trucking whose closest terminal is located ninety miles from Pittsman’s residence. (Id. at ¶¶ 11-12). Pittsman alleges that on March 16, 2009, another physician examined him at the request of Crete Carrier/ Shaffer Trucking and “determined that [Pittsman] met the standards of 49 C.F.R.[§]391.41.” (Id. at ¶¶ 13-14).

In his complaint, Pittsman originally advanced three causes of action. Count I entitled “tortious interference with business relations,” avers, in its entirety, that Dr. Perrone “wrongfully interfered with [Pittman’s] relationship between [Pittsman] and Bolus Freight in that [Dr. Perrone] and Redi-Care acted intentionally, knowingly, and without justification or privilege to cause Chris Burris and Bolus Freight not to perform the agreement with [Pittsman] to provide employment.” (Id. at ¶ 16). In count II, Pittsman sets forth a claim for “defamation” and alleges that Dr. Perrone and Redi-Care “knowing the truth of the matters alleged above and intended (sic) to injure [Pittsman], deprive him of his good name, and further intending to cause [Pittsman] to be denied employment by Bolus Freight, maliciously, wickedly, and illegally made and published a writing containing scandalous, defamatory, and libelous statements concerning [Pittsman] and his ability to perform his profession as an over the road truck driver, to wit, indicating that [Pittsman] was not physically able to perform his duties as a truck driver without an SPE certificate, knowing that [Pittsman] had been operating as an over the road truck driver with a Class A Pennsylvania Driver License for a period of years prior to his examination by Defendant Perrone and that the prior physicians that examined [Pittsman] did not require the SPE.” (Id. at ¶ 18). Pittsman also asserted a cause of action for “corporate liability” in count III, (Id. at ¶¶ 21-25), but by order dated July 7, 2011, Judge Vito P. Geroulo dismissed that claim with prejudice. (Docket entry no. 16). In his sole prayer for relief in support of his tort claims, Pittsman “requests judgment in his favor and against defendants in an amount in excess of three hundred and fifty thousand dollars ($350,000.00) together with costs.” (Docket entry no. 1 at p. 7).

Dr. Perrone and Redi-Care have filed a motion for summary judgment seeking to dismiss Pittsman’s defamation claim as time-barred by the one-year limitations period in 42 Pa.C.S. § 5523(1). (Docket entry no. 24 at ¶¶ 8-9). The movants argue that since Pittsman’s claim for tortious interference with business relations is premised upon the same defamatory conduct that allegedly occurred on February 24, 2009, count II of the complaint should also be dismissed based upon the same one-year statute of limitations. {Id. at ¶[¶ 10-15). Pittsman’s brief in opposition to the motion for summary judgment only addresses the tortious interference with business relations claim, and posits that his “tortious interference claim is not based directly upon the defamation claim and, therefore, the two year statute of limitations applies” to that cause of action. (Docket entry no. 26 at p. 4). Following the completion of oral argument on February 26, 2013, the motion for summary judgment was submitted for a decision.

II. DISCUSSION

(A) STANDARD OF REVIEW

“Summary judgment is appropriate if a plaintiff’s cause of action is barred by the statute of limitations.” Matharu v. Muir, 29 A.3d 375, 381 (Pa. Super. 2011); Fraynert v. Delaware and Hudson Railway Company. Inc., 2013 WL 551711, at * 5 (Lacka. Co. 2013). To secure summary judgment, the moving party bears the burden of proving that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 554, 981 A.2d 145, 154 (2009). In making that determination, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Rock v. Rangos, 61 A.3d 239, 250 (Pa. Super. 2013); Sedor v. Community Medical Center, 16 Pa. D. & C. 5th 193, 202 (Lacka. Co. 2010).

(B) DEFAMATION CLAIM

Dr. Perrone and Redi-Care first seek to dismiss Pittsman’s defamation claim premised upon “scandalous, defamatory, and libelous statements concerning [Pittsman] and his ability to perform his profession as an over the road truck driver.” (Docket entry no. 25 at p. 4 (quoting plaintiff’s complaint at ¶ 18)). The movants argue that any such claim is clearly barred by the one-year limitations period for libel and slander actions. (Docket entry no. 25 at p. 4). As noted above, Pittsman’s responsive brief does not address the timeliness of his cause of action for defamation.

Defamation “is the tort of detracting from a person’s reputation, or injuring a person’s character, fame, or reputation, by false and malicious statements.” Cogley v. Duncan, 32 A.2d 1288, 1289 n. 1 (Pa. Super. 2011); Davis v. PPL Sustainable Energy Fund, 2011 WL 7272291, at *6 (Lacka. Co. 2011). Libel involves the malicious publication of written or printed material which tends to blacken a person’s reputation or expose the person to public hatred, contempt or ridicule. Sobel v. Wingard, 366 Pa. Super. 482, 486, 531 A.2d 520, 522 (1987); Koldjeski v. Colombo, 2009 WL 5124027, at * 3 (Lacka. Co. 2009). Slander consists of spoken words that are “intended to lower the view of the target of the communication in the community or...to deter third persons from associating with the target.” Reardon v. Allegheny College, 926 A.2d 477, 484 (Pa. Super. 2007), app. denied, 596 Pa. 755, 947 A.2d 738 (2008).

Pittsman’s complaint appears to aver actions for slander (the telephone conversation with Mr. Burris) and libel (the medical report that was transmitted to Bolus Freight) which allegedly occurred on February 24,2009. Pittsman alleges that “prior to Dr. Perrone’s determination regarding [Pittsman’s] ability to perform his duties as an over the road truck driver with a Pennsylvania Class A driver’s license, Dr. Perrone made a phone call to Chris Burris regarding [Pittsman’s] status.” (Docket entry no. 1 al^ 8). According to Pittsman, “[a]fter Dr. Perrone’s conversation with Chris Burris of Bolus Freight on February 24,2009, Dr. Perrone refused to certify [Pittsman] as able to drive a commercial vehicle without a Skill Performance Evaluation (“SPE”) certificate indicating that [Pittsman] did not meet the standards of 49 C.F.R. [§]391.41.” (Id. at! 9).

In his defamation count, Pittsman identifies the defamatory communication as Dr. Perrone’s oral and written statements “that [Pittsman] was not physically able to perform his duties as a truck driver without a[n] SPE certificate....” (Id. at ¶ 18). Although not distinctly averred, it is presumed that Pittsman contends that Dr. Perrone advised Chris Burris by telephone that Pittsman was physically unable to work as a commercial motor vehicle operator without an SPE certificate. See Jaindl v. Mohr, 432 Pa. Super. 220, 229, 637 A.2d 1353, 1358 (1994) (defamation complaint must, on its face, identify specifically what defamatory statements were made, and to whom those statements were made), aff’d, 541 Pa. 163, 661 A.2d 1362 (1995). For purposes of addressing the instant motion for summary judgment, it will be assumed that the defamation being asserted by Pittsman consists of Dr. Perrone’s determination that Pittsman was physically incapable of operating a commercial vehicle absent an SPE certificate, and his alleged communication of that diagnosis to Mr. Burris at Bolus Freight.

The only incidents which could conceivably serve as the basis for alleged defamation occurred on February 24, 2009. (Id. at ¶¶ 5-6, 8-9, 18). Pittsman does not contend that on February 24,2009, he was unaware of the allegedly false and defamatory determination and concomitant publication of that diagnosis on that date, or the harm that they ostensibly caused him. See Gallucci v. Phillips & Jacobs, Inc., 418 Pa. Super. 306, 313-314, 614 A.2d 284, 288 (1992) (discussing application of discovery rule to defamation action), app. denied, 533 Pa. 660, 625 A.2d 1193 (1993). Under section 5523(1) of the Judicial Code, 42 Pa.C.S.A., the statute of limitations applicable to libel and slander claims is one year. Pro Golf Manufacturing, Inc. v. Tribune Review Newspaper Company, 570 Pa. 242, 247, 809 A.2d 243, 246 (2002); Brennan v. Durso, 2011 WL 2262484, at * 3 (Lacka. Co. 2011). The one-year limitation under section 5523(1) begins to run on the date of the publication of the defamatory matter. In re Philadelphia Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012), cert. dismissed, 133 S.Ct. 1001 (U.S. 2013); Bellas v. WVHCS Retention Company, 2012 WL 3961227, at * 6 (M.D. Pa. 2012).

The alleged defamatory publication at issue occurred on February 24, 2009. It is undisputed that Pittsman did not commence this litigation until February 23, 2011, almost two years after the date of the alleged defamatory diagnosis and communication and his awareness of that purported defamation. (Docket entry no. 1). Pittsman’s defamation claim was clearly time-barred as of the date that this suit was filed, and as a result, the motion for summary judgment seeking to dismiss that cause of action will be granted.

(C) TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

Pittsman has also asserted a cause of action for “tortious interference with business relations,” which is set forth in a single paragraph that reads:

Defendant, Dr. David Perrone, wrongfully interfered with [Pittsman’s] relationship between [Pittsman] and Bolus Freight in that defendants Dr. David Perrone and Redi-Care acted intentionally, knowingly, and without justification or privilege to cause Chris Burris and Bolus Freight not to perform the agreement with [Pittsman] to provide employment.

(Docket entry no. 1 at ¶ 16). Pittsman does not aver whether he is alleging tortuous interference with an existing contractual relationship, as opposed to a prospective business relation. The elements of a claim for tortious interference with an existing business relationship are: (1) the existence of a contractual relationship; (2) an intent by the defendant to harm the plaintiff by interfering with that relationship; (3) the absence of privilege or justification for such interference; and (4) actual damage resulting from the defendant’s improper conduct. Haun v. Community Health Systems, Inc., 14 A.3d 120, 124 (Pa. Super. 2011); Pachucy v. Nutrition, Inc., 9 Pa. D. & C. 5th 105, 112-113 (Lacka. Co. 2009). The tort of intentional interference with a prospective contractual relationship requires proof of: (1) a prospective, rather than an existing, relationship between the plaintiff and a third party; (2) the purpose or intent to harm the plaintiff by preventing the relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) actual damage resulting from the defendant’s conduct. Foster v. UPMC South Side Hospital, 2 A.3d 655, 665 (Pa. Super. 2010), app. denied, 608 Pa. 647, 12 A.3d 371 (2010); Pachucy, supra, at 113. Since Pittsman had merely submitted an application for employment with Bolus Freight, he presumably is asserting a claim for tortious interference with a prospective contractual relationship.

Based upon the holding in Evans v. Philadelphia Newspapers, Inc., 411 Pa. Super. 244, 601 A.2d 330 (1991), Dr. Perrone and Redi-Care seek to dismiss Pittsman’s claim for tortious interference with business relations as time-barred by the one-year statute of limitations. Dr. Perrone and Redi-Care maintain that the “underlying wrong,” which serves as the basis for Pittsman’s tortious interference claim, is Dr. Perrone’s alleged defamatory diagnosis, and publication of the same, to Chris Burris and Bolus Freight on February 24,2009. (Docket entry no. 25 at p. 5). They argue that Evans prevents Pittsman from attempting to circumvent the one-year limitation period by labeling his cause of action as tortious interference when, in essence, it is simply a defamation claim. (Id. ). Pittsman counters that “Dr. Perrone’s refusal to certify” him under 49 C.F.R. § 391.41 “was an independent act” constituting tortious interference, and that “Dr. Perrone’s subsequent act in reporting his actions regarding the physical examination to Bolus Freight and their representative is not the gravamen of the tortious interference claim in [Pittsman’s] complaint.” (Docket entry no. 26 at p. 3).

In Evans, the plaintiff sued a newspaper and its reporters for defamation and tortious interference with business relations after they published an article about the plaintiff and his youth training program which allegedly was defamatory. Evans, 411 Pa. Super, at 245-246, 601 A.2d at 331. Following the publication of the article, the author “allegedly repeated the false statements orally to students, parents and sponsors of the program,” as a result of which “enrollment and funding of [the youth training program] dropped, causing considerable financial burden to [plaintiffs].” Id. at 246, 601 A.2d at 332. The trial court concluded that the tortious interference and defamation claims were both governed and barred by the one-year statute of limitations since both causes of action were premised upon the same defamatory communications. Id.

On appeal, the Superior Court phrased the issue of first impression as “whether a tortious interference claim, which is based upon identical allegations set forth in an accompanying defamation claim, should be considered duplicative and, as such, be barred by the one-year statute of limitations applicable to defamation claims.” Id. at 247-248, 601 A.2d at 332. Recognizing that claims of defamation and tortious interference may constitute separate causes of action, the Evans court nonetheless reasoned:

In a situation such as this, however, where the underlying wrong which the complaint alleges is defamation by publication of a libelous report, and the claim of injury set out in each count springs from the act of publication, the Appellants should not be able to circumvent the statute of limitations by merely terming the claim tortious interference when in essence it is one of defamation, subj ect to a one-year limitation of action. In such a situation, we will look to the gravamen of the action, not to the label applied to it by plaintiffs.

Id. at 249, 601 A.2d at 333. In upholding the dismissal of the tortious interference claim based upon the expiration of the one-year limitations period, the Superior Court “concludefd] that since Appellants’ claim for tortious interference is based upon the alleged false and defamatory character of the communication complained of, and it is indistinguishable from the claims of libel and slander, the same one-year limitation period should apply to both.” Id. at 252, 601 A.2d at 334-335.

The issue of which limitations period applies to a particular cause of action is a question of law. Burger v. Blair Medical Associates. Inc., 600 Pa. 194, 201, 964 A.2d 374, 378 (2009) (holding that elements of action for breach of physician-patient confidentiality do not sufficiently overlap with those of an invasion-of-privacy claim, and that if the facts underlying the former claim are sufficiently distinguishable from those supporting the latter cause of action, the breach of confidentiality action is governed by the catch-all two-year limitations period). “To prevent parties from avoiding the one (1) year statute of limitations on defamation claims, where a claim for interference with contractual relations is predicated upon allegedly defamatory statements, the one (1) year statute of limitations for defamation applies.” DeAngelo Brothers, Inc. v. Platte River Insurance Company, 2010 WL 2635983, at * 7 (M.D. Pa. 2010) (citing¿Vims' supra). The determination of the applicable limitations period depends upon whether the tortious interference claim is grounded upon the same conduct which serves as the basis for the defamation action. Compare Westwood-Booth v. Davy-Loewy, Ltd., 1999 WL219897, at* 5 (E.D.Pa. 1999) (tortious interference claim subject to one-year statute of limitations since it stemmed from defendant’s criticism of “plaintiff for engaging an operative with KGB ties.”), and Tucker v. MTS, Inc., 1998 WL 67527, at * 3 (E.D. Pa. 1998) (applying one-year limitations period to intentional infliction of emotional distress claim, after finding “[t] here is no independent basis for Tucker’s emotional distress claim — the claim exists solely because of various defendants’ roles in disseminating allegedly defamatory statements (Shakur’s lyrics) and various defendants’ allegedly derogatory actions (the filing of the California Actions and Tucker’s publicized arrest).”), aff’d, 229 F.3d 1139 (3d Cir. 2000), cert. denied, 531 U.S. 1078 (2001), with Manning v. Flannery, 2012 WL 1111188, at * 12-18 (W.D.Pa. 2012) (tortious interference claim not governed by one-year limitation since it did not hinge upon any defamatory statements), and Rolite, Inc. v. Wheelabrator Environmental Systems, Inc., 958 F. Supp. 992, 1011 (E.D. Pa. 1997) (one-year limitations period not applicable to tortious interference action which was “based primarily upon unfair competition rather than on defamation.”).

In a factually analogous scenario, the federal district court in Hurst v. Beck, 1992 WL 396592 (E.D. Pa. 1992) held that the one-year statute of limitations applied to the tortious interference with contract claims of a plaintiff who was denied employment following the defendants’ communication of defamatory information to the prospective employer. In Hurst, a physician who sought employment with Avery Medical Center of Connecticut suedher former hospital employer and two of its department heads who “gave the Avery Medical Center of Connecticut references about her that were both defamatory and based upon information contained in the plaintiff’s confidential personnel file.” Id. at * 1. Dr. Hurst alleged that “[b]ased upon this information, the Avery Center declined to hire Dr. Hurst.” Id. In arguing that her tortious interference claim was not subsumed by her defamation action, Dr. Hurst asserted that defendant’s “reading of her personnel file, disclosing her CREOG residents scores, relating to the Avery Center that certain other physicians did not like to work with Dr. Hurst, and that the Avery Center should contact Dr. Beck, all constitute separate conduct beyond defamation and therefore is a separate tort.” Id. at * 5. However, the district court disagreed and concluded that “[wjhile each of the foregoing actions might have had an impact on the plaintiff’s business, the ‘gravamen’ of plaintiff’s complaint is that the foregoing conduct was detrimental because of its defamatory character.” Id. Thus, it held “that the tortious interference with contract claims are controlled by the one-year statute of limitations.” Id.

In contrast, the Superior Court in Maverick Steel Company, LLC v. Dick Corporation/Barton Malow, 54 A.3d 352 (Pa. Super. 2012), app. denied, No. 540 WAL 2012 (Pa. April 9, 2013) applied the two-year statute of limitations to a tortious interference claim that was founded upon an independent, non-defamatory course of conduct. The commercial defendant in Maverick Steel issued a default notice and sought coverage from its structural steel subcontractor’s surety based upon defendant’s claim that the subcontractor’s delays in performance had jeopardized a stadium construction project. Id. at 353. In a series of subsequent letters and meetings, defendant reportedly attempted to extort money from the surety in an effort to subsidize the cost of the stadium project. Defendant’s demands to the surety were “based on [the subcontractor’s] financial status and its claim for cost overruns — not on [the subcontractor’s] failure to perform in a timely manner.” Id. at 356. Neither of the post-default notice letters authored by defendant “contained] any defamatory statements; however, they suggest that [defendant] was targeting [the surety] as a source of funds for the structural steel work.” Id. at 357.

Thesubcontractorassertedthatdefendanthadcommitted trade libel by falsely claiming that the subcontractor was chargeable with delays in performance and, therefore, in default. Additionally, based upon defendant’s subsequent actions in attempting to extort funds for the construction project, the surety terminated its relationship with the subcontractor “on proj ects other than the Stadium Proj ect.” Id. at 354. As a consequence, the subcontractor lost its contractual relationship on other projects, and for that reason, it also advanced a tortious interference action. Id.

The Superior Court noted that “[t]he record contains additional evidence of non-defamatory facts on which Maverick based its interference claim.” Id. at 357. Hence, it “conclude[d] that the gravamen of Maverick’s claim was that [defendant] intentionally and wrongfully engaged in a course of conduct and communications...which were designed to extract money from [the surety] and resulted in the premature termination of [the subcontractor’s] relationship with its surety.” Id. Therefore, it held that the tortious interference “claim as presented is separate and distinct from libel or slander,” such that “Maverick’s interference claim was subject to the two-year statute of limitations set forth in 42 Pa.C.S.A. § 5524.” Id. at 357-358.

In the case sub judice, Pittsman has not alleged any wrongful conduct by Dr. Perrone and Redi-Care other than their determination that Pittsman was not physically qualified to operate a commercial vehicle without the SPE certificate, and their supposed communication of that conclusion to Mr. Burris and Bolus Freight. Those two matters serve as the sole grounds for Pittsman’s defamation claim, as well as his tortious interference claim. Pittsman has not identified any other non-defamatory conduct or statement by Dr. Perrone or Redi-Care upon which he bases his cause of action for tortious interference. Inasmuch as “the underlying wrong which the complaint alleges is defamation,” and Pittsman’s tortious interference claim “springs from the act” of defamation, the same one-year statute of limitations governs both causes of action. See Evans, 411 Pa. Super, at 249, 601 A.2d at 333.

Pittsman attempts to avoid application of the one-year limitations period by asserting that Dr. Perrone first concluded that Pittsman required an SPE certificate and later communicated that diagnosis to Bolus Freight. (Docket entry no. 26 at p. 3). However, in his verified pleading, Pittsman attests that Dr. Perrone contacted Mr. Burris “prior to Dr. Perrone’s determination regarding [Pittsman’s] ability to perform his duties as an over the road truck driver,” and that “[ajfter Dr. Perrone’s conversation with Chris Burris of Bolus Freight on February 24, 2009, Dr. Perrone refused to certify [Pittsman] as able to drive a commercial vehicle without a Skill Performance Evaluation....” (Docket entry no. 1 at ¶¶ 8-9). Pittsman’s factual statements in his complaint are “judicial admissions and are binding” on him, and are “considered conclusive in the cause of action in which they are made.” Cogley, 32 A.3d at 1292 (quoting John B. Conomos, Inc. v. Sun Company, 831 A.2d 696, 712-713 (Pa. Super. 2003), app. denied, 577 Pa. 697, 845 A.2d 818 (2004)). Pittsman is bound by those factual representations set forth in his verified pleading, and may not attempt to retract them in his brief. See Volk v. Unemployment Compensation Bd. of Review, 49 A.3d 38, 47 (Pa. Cmwlth. 2012) (“Claimant’s explanation that he did not attend the hearing in his appeal because he did not receive notice of the hearing would be similar to a favorable statement made by an attorney in an appeal or brief, which is neither evidence nor a judicial admission on which a factual finding could be made.”). Furthermore, Pittsman’s proffered reversal of the factual chronology does not alter the ultimate conclusion that his tortious interference claim is entirely dependent upon the alleged defamatory diagnosis and communication. Accordingly, the tortious interference action is clearly barred by the one-year statute of limitations, and the motion for summary judgment will also be granted as to the tortious interference claim.

ORDER

And now, April 11, 2013, upon consideration of the “motion for summary judgment of defendants, Dr. David Perrone and Redi-Care Medical Center of Taylor, Inc.,” the memoranda of law and exhibits submitted by the parties, and the oral argument of counsel, and based upon the reasoning set forth in the foregoing Memorandum, it is hereby ordered and decreed that:

1. Defendants’ motion for summary judgment is granted; and

2. The clerk of judicial records is directed to enter judgment in favor of defendants, Dr. David Perrone and Redi-Care Medical Center of Taylor, Inc., and against plaintiff, David Pittsman, in the above-captioned matter.

      . The United States Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) has promulgated regulations which “establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers.” Bailey v. Amerigas Propane. Inc., 2013 WL 1121384, at * 5 (D. Md. 2013). Section 391.41 (a)(l)(i) of Title 49 of the Code of Federal Regulations provides that a commercial motor vehicle operator “must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so....” 49 C.F.R. §§ 391.41 (a)( 1 )(i)Section 391.41(b) states that a person “is physically qualified to drive a commercial motor vehicle” if [s]he does not have a loss or an impairment of an arm, hand, foot, or leg “or has been granted a skill performance evaluation certificate pursuant to § 391.49.” 49 C.F.R. §§ 391.41(b) (1) and (2)(ii). 49 C.F.R. § 391.49 sets forth the procedure by which an individual may seek an SPE certificate from the FMCSA. If the SPE certificate is granted by the FMCSA, it “allows the driver to continue driving a commercial vehicle despite being physically unqualified.” Bailey, supra.

      . The defamatory “writing” that Dr. Perrone apparently published is the “Medical Examination Report for Commercial Driver Fitness Determination” dated February 24, 2009, which is attached to the complaint. That report reflects that Pittsman completed a “health history” in which he identified a physical limitation of “weakness to left hand d[ue] to stroke at birth.” (Docket entry no. 1, exhibit A at p. 2). Dr. Perrone’s physical examination of Pittsman revealed left sided “hemiparesis” and “some weakness of hand & foot.” (Id. at p. 1). His stated diagnosis in the report was “D.O.T.P.E. [Department of Transportation Physical Examination] Fail,” and his note reflects that Pittsman was “given SPE packet.” (Id.).

      . Pursuant to Pa.R.C.P. 1021(b), any pleading demanding relief for unliquidated damages may not seek judgment in a specific sum. Larry Pitt & Associates v. Long, 716 A.2d 695, 703 n. 9 (Pa. Cmwlth. 1998). Pa.R.C.P. 1021(c) dictates that in those counties having rules governing compulsoiy arbitration, the plaintiff must aver whether the amount of damages sought is above or below the jurisdictional amount for compulsory arbitration under the applicable local rule. See Flynn v. Casa DiBertacchi Corp., 449 Pa. Super. 606, 618-619, 674 A.2d 1099, 1105 (1996). Under Local Rule 1301(a)(2), the compulsory arbitration limit in Lackawanna County is $50,000.00. See Lacka. Co. R.C.P. 1301(a)(2).

      . The only materials that have been submitted as the summary judgment record are Pittsman’s complaint and pages 113 to 114 of his deposition in which he conceded that his sole interaction with Dr. Perrone and Redi-Care took place on February 24, 2009. (Docket entry no. 24, exhibits A and B). No other discovery materials or exhibits have been submitted for review.