author: ZULICK, J.,

text:
    Citibank (South Dakota) N.A. v. Strunk

      Joan P. Depfer, for plaintiff.

      Herbert P. Strunk III, pro se.
    May 3, 2010
   ZULICK, J.,

This case arises on appeal from a judgment in district court. Herbert Strunk III filed a civil action in district court against Sears Holding Corporation on March 27, 2009. He alleged that Sears Holding Corporation lowered his credit limit on his Sears credit card without notice, putting the limit below that of his existing balance, and charged him fees for being over his newly-lowered credit limit. He alleged that this damaged his credit score, and sought damages for his “time, aggravation and emotional turmoil.” Complaint before District Court 43-1-01. Mr. Strunk also sought to have the balance due on his Sears credit card forgiven.

The Strunk Sears credit card was actually an account with Citibank. On May 29,2009, Citibank filed a cross-claim against Strunk. On July 23, 2009, District Magisterial Judge Anthony D. Fluegel entered judgment in favor of Citibank on the cross claim in the amount of $5,294.54. The court found in favor of Sears Holding Corporation on Strunk’s claim. On August 5, 2009, Strunk filed a notice of appeal from the July 23, 2009 judgment in favor of Citibank on Citibank’s cross complaint. Citibank filed a complaint on August 27, 2009. On January 11, Strunk filed an answer, new matter and counterclaim asserting that Citibank was liable for breach of contract, defamation, and violations of the Fair Debt Collection Practices Act. Citibank filed preliminary objections to Strunk’s counterclaims. The matter was scheduled for argument on April 5, 2010. Citibank was present and argued its position. Mr. Strunk was present but had not filed a brief. He was given leave to promptly file a brief. He filed a packet of documents that day.

DISCUSSION

Before addressing the preliminary objections, Mr. Strunk’s documents filed on April 5, 2010 need to be discussed. The documents could not be considered in the decision on preliminary objections because they did not contain discussion or argument. The packet included Strunk’s pro se response to the complaint including affirmative defenses and counterclaims, which was filed on January 11,2010, a Senate bill, and an article entitled “PA Debt Collection Law — Pitfalls in Pennsylvania.” The court reviewed the documents provided by Mr. Strunk but they did not address the issues presented by Citibank’s preliminary objections.

In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 638, 584 A.2d 403, 407 (1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Company v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995). The “lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Company v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963).

The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.C.P. 1019(a). The allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.” Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 337, 690 A.2d 719 (1996), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997).

The issues raised by Citibank are (1) a motion to strike the counterclaim for failure to conform to a law or rule of court because Strunk did not appeal the judgment against him in district court; (2) a demurrer for legal insufficiency of the breach of contract claim (3) failure to conform to law or rule of court in alleging breach of contract because a contract is not asserted (4) a demurrer for legal insufficiency of the defamation claim and (5) a demurrer for legal insufficiency of the punitive damages claim.

1. Motion To Strike the Counterclaim for Failure To Properly Appeal

Citibank’s first preliminary objection is a motion to strike the complaint for failure to conform to a law or rule of court pursuant to Pa.R.C.P. 1028(a)(2). Pennsylvania Rule of Civil Procedure 1028(a)(2) authorizes a party to challenge a pleading which fails to conform to law or rule of court by the filing of preliminary objections. Citibank contends that Strunk’s counterclaim is predicated upon the same facts and claims which were pled in his complaint filed in magisterial district court. A zero judgment was entered in favor of defendant Sears Holding Corporation on that complaint. Citibank argues that Mr. Strunk did not appeal this judgment and therefore his counterclaims are barred.

Pa.R.C.P.D J. 1002 provides that

“a party aggrieved by a judgment for money ... may appeal therefrom within 30 days after the date of entry of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal. . . together with a copy of the notice of judgment issued by the district justice ....”

Pa.R.C.P.D.J. 1004(c) provides that

“When judgments have been rendered on complaints of both appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can be properly pleaded in that court. If appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at anytime within 30 days after the date on which the appellant served a copy of this notice of appeal upon appellee.”
“Rule 1004 implies that appeals may be filed from either the claim, counterclaim or both claims. There is no language, however, that expressly requires the filing of a separate notice of appeal when an appellant (as opposed to an appellee) appeals from judgments on a complaint and cross-complaint.” American Appliance v. E. W. Real Estate Managment Inc., 564 Pa. 473, 480, 769 A.2d 444, 448 (2001). (emphasis in original) Although separate notices are not required, the attachment of notices of judgment from both the complaint and cross-complaint is sufficient to satisfy the requirements of Rule 1002 as to the method of appeal. Id.

Mr. Strunk properly appealed the judgment entered against him in favor of Citibank on Citibank’s complaint. He correctly attached the notice of judgment to the notice of appeal. However, when Strunk appealed, he only appealed the judgment in favor of Citibank on its complaint, not the adverse judgment on his complaint. He did not attach the judgment in favor of Sears Holding Corporation and only listed the case of Citibank v. Herbert Strunk on the notice of appeal. Citibank contends that his counterclaim is barred because he did not appeal the adverse judgment on his claim below.

Citibank contends that “all of the claims alleged against Citibank in Strunk’s counterclaim are identical to those that he alleged in his prior magisterial district justice (sic) action and which were fully and finally tried to judgment in favor of Citibank on July 23,2009.” Citibank brief, page 6. The problem with this argument is that Strunk did not sue Citibank before District Judge Fluegel. Fie sued Sears Holding Corporation. Citibank asserts that this was an error, and that he “improperly identified Citibank (South Dakota) N.A. as ‘ Sears Holding Corporation’ in his suit.” This may be true, however, no amendment was sought in the court below, and the judgment actually entered was in favor of Sears Holding Corporation, not Citibank. The Strunk suit may have been dismissed by Judge Fluegel because Strunk sued the wrong party. This preliminary objection will be denied.

2. Motion for a More Specific Pleading and Demurrer As to Count I of Strunk’s Counterclaim

Citibank has filed several additional objections to Strunk’s counterclaim. Strunk contends in Count I of the counterclaim that Citibank breached the parties’ contract. However, Strunk’s counterclaim does not identify the contract involved, Citibank’s contractual duty, or the nature of the alleged breach of the contract. Pa.R.C.P. 1019(a) provides that “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.” Pa.R.C.P. 1019(a). A complaint must not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Santiago v. Pennsylvania National Mutual Casualty Insurance Company, 418, Pa. Super. 178, 613 A.2d 1235 (1992). Pa.R.C.P. 1019(h) also requires that the claim specify whether the parties’ alleged agreement is oral or written. If it is written, Pa.R.C.P. 1019(i) provides that a copy must be attached to the complaint.

Citibank’s request for a more specific pleading will be granted.

3. Citibank’s Demurrer and Motion for More Specific Complaint As to Count II of Strunk’s Counterclaim

Citibank has filed a demurrer to Count II of Strunk’s counterclaim which is entitled “Defamation” but complains of violations of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. The purpose of the FDCPA is, in part, “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. §1692(e). (emphasis added) In that regard, this statute “was designed to protect consumers from unscrupulous collectors whether or not there is a valid debt.” Baker v. G. C. Servs. Corporation, 677 F.2d 775, 777 (9th Cir. 1982). Citibank contends that the FDCPA is inapplicable because it is a creditor not a debt collector. The FDCPA defines a “debt collector” as:

“[A]ny person... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another .. . [T]he term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. ...” 15 U.S.C. §1692a(6)

A plain reading of the statute reveals that generally, as a matter of law, “creditors are not subject to the FDCPA.” Maguire v. Citicorp Retail Servs. Inc., 147 F.3d 232, 235 (2d Cir. 1998). There is an exception to this general rule, if a creditor uses any name other than its own while trying to collect the debt, indicating that a third person is collecting or attempting to collect such debts, if it pretends to be someone else or uses a pseudonym or alias, or if it owns and controls the debt collector rendering it the creditor’s alter ego. Mazzei v. Money Store, 349 F. Supp.2d 651, 659 (S.D.N.Y. 2004) (citing Maguire, 147 F.3d at 234-35).

Strunk’s counterclaim fails to state a cause of action against Citibank pursuant to the FDCPA. Strunk does not dispute that Citibank is a creditor directly seeking to obtain payment of a debt owed to it. Counterclaim, ¶¶23, 30. Because the FDCPA expressly limits its application to debt collectors, not creditors, Strunk’s claim against Citibank is not authorized by the FDCPA. The complaint does not allege that Citibank used any other name or alias in an attempt to collect the debt which is the subject of Citibank’s claim.

Citibank also contends that Strunk’s claim that it violated the Fair Credit Extension Uniformity Act, (FCEUA), 73 P.S. §2270.1 is preempted by federal law. Strunk contends in his counterclaim that Citibank “caused Strunk’s credit report to ‘appear’ as though he overspent and exceeded his card limit.” Counterclaim, ¶23. Citibank cites section 168 lt(b)(l)(F) of the Fair Credit Reporting Act as preempting state law challenges falling within the FCRA’s scope. This section was recently analyzed by the United States District Court for the Middle District in Sites v. Nationstar Mortgage LLC, 646 F. Supp.2d 699, 712 (M.D. Pa. 2009) where the federal district court found that section 168 lt(b)(l)(F) preempted state statutory claims. The Sites court found that “[t]o prevent the glut of cases in the federal courts that would result if every consumer could sue anytime he or she disputed the accuracy of furnished information, Congress wisely limited enforcement of this section to government agencies.” See Gordon v. Greenpoint Credit, 266 F. Supp.2d 1007, 1011 (S.D. Iowa 2003); Sites, 646 F. Supp.2d at 704.

Two provisions in particular serve to shield furnishers of information from the threat of private suits: section 1681h(e), which provides qualified immunity from “proceeding^] in the nature of defamation, invasion of privacy, or negligence,” id. section 1681h(e), and section 1681t(b), which provides qualified immunity from proceedings “under the laws of any state.” Id. at 704.

Strunk’s defamation claim arises directly from the allegedly inaccurate credit reporting by Citibank. “As section 168 It now stands it may make common sense to read this exemption provision as applying to state statutory regulations that overlap with the FCRA rather than with state common-law torts which have elusive ‘effective’ dates.” Watson v. Trans Union Credit Bureau, no. 04-205, 2005 WL 995687, at *8 n.8 (D.Me. April 28, 2005). Moreover, this interpretation sensibly “allow[s] for state-law torts to serve as a backstop to the FCRA enforcement scheme, only permitting prosecution of the most egregious violations of civil society.” Islam, 432 F. Supp.2d at 193. Sites, 646 F. Supp.2d at 709. Strunk’s statutory claim under the Fair Credit Extension Uniformity Act, 73 P.S. §2270 will be dismissed.

However, Strunk’s common-law defamation claim is not preempted. Only credit reporting agencies or users of credit reports who have taken adverse action against the plaintiff based upon information in the plaintiff’s credit report are exempted from suit by 15 U.S.C. §1681h(e). Because defendant is neither a credit reporting agency nor a user of a consumer report that denied, revoked, or refused credit with respect to the plaintiffs, §1681h has no application to the instant case. See e.g., Islam, 432 F. Supp.2d at 194 (finding 15 U.S.C. §1681h(e) “simply . .. not applicable” where the defendant mortgage servicer, “the alleged furnisher of the incorrect information,” was neither “a credit reporting agency [, nor] sued in its capacity as a user of credit reports[, nor] alleged to have taken any adverse action against the [plaintiffs] based on information in the [plaintiffs’] credit report”); Webb v. Bob Smith Chevrolet Inc., no. 04-CV-66, 2005 WL 2065237 at *5 (W.D. Ky. Aug. 24, 2005) (finding 15 U.S.C. §1681h(e) inapplicable where the defendant was “a user of consumer information,” but there was “no allegation that [the defendant] took an adverse action against plaintiff”). Sites, 646 F. Supp.2d at 706.

4. Citibank’s Demurrer To the Defamation Claim for Insufficient Facts To Support the Claim

Citibank also demurs to the counterclaim because Strunk has not alleged facts establishing the substance of the alleged defamatory communication, the identity of the individuals to whom the defamatory statements were published, or the dates of publication of the defamatory statements. Our Superior Court required a defamation plaintiff to allege with particularity “the content of the oral or written statements claimed to have been made, the identity of the person or persons making those statements, the relationship of that person or persons to the defendant company and authority to act in behalf of the defendant company, the identity of the person or persons to whom the statements were made, and the relationship of that person or persons to the companies receiving the alleged communications.” Gross v. United Engineers and Constructors Inc., 224 Pa. Super. 233, 235, 302 A.2d 370, 371 (1973). This objection will be sustained and defendant will be required to file a more specific complaint.

5. Citibank’s Demurrer to Punitive Damages Claim

Finally, Citibank contends that the complaint does not set forth a cause of action for punitive damages. Citibank correctly asserts that punitive damages are not recoverable on a breach of contract claim. DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 370 (Pa. Super. 2003). Punitive damages may be requested in a defamation claim, but there must be an allegation of actual malice. The Pennsylvania Supreme Court has held that in order to award punitive damages to a private party plaintiff in a defamation suit, a jury must conclude that there was clear and convincing evidence that the defendant(s) acted with “actual malice.” Hepps v. Philadelphia Newspapers Inc., 506 Pa. 304, 485 A.2d 374 (1984), reversed on other grounds, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); Bargerstock v. Washington Greene Community Action Corporation, 397 Pa. Super. 403, 415, 580 A.2d 361, 366 (1990). Strunk makes no allegation of actual malice in the complaint. Citibank’s objection will be sustained.

ORDER

And now, May 3,2010, following consideration of the parties’ arguments on plaintiff Citibank’s preliminary objections, it is ordered as follows:

(1) Citibank’s objection seeking a more specific complaint is granted. Plaintiff will be given leave to file a more specific amended complaint identifying whether the parties’ complaint is oral or written and attaching a copy of their written agreement or an explanation of why it cannot be attached.

(2) Citibank’s demurrer to Strunk’s claims under the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. is sustained. This claim is dismissed.

(3) Citibank’s demurrer to Strunk’s claims under the Fair Credit Extension Uniformity Act, (FCEUA), 73 P.S. §2270.1 is sustained. This claim is dismissed.

• (4) Citibank’s request for a more specific pleading of plaintiff’s defamation claim is granted.

(5) Citibank’s demurrer to the demand for punitive damages for breach of contract is granted.

(6) Citibank’s request for a more specific pleading of the claim for punitive damages in the defamation action is granted.

(7) All other preliminary objections are denied.

(8) Plaintiff is given leave to file an amended complaint within 20 days in accordance with this opinion.


source: Caselaw Access Project

author: GRINE, P.J.,

license: Public Domain

text:
    Donaldson v. Davidson Brothers Inc.

      Lloyd R. Hampton, for plaintiff.

      Brian A. McCall, for defendants.

      John A. Statler, for counterclaim plaintiffs.

      F. Cortez Bell III, for additional defendants.

      Dennis J. Stofko, for counterclaim defendant.

      June 1, 2010
   GRINE, P.J.,

Presently before the court are preliminaiy objections brought by Kevin Donaldson, as administrator of the estate of Sarah Donaldson. Donaldson claims that a release signed by a duly authorized representative of LJF Inc. has released Donaldson of all claims except one for loss of contract. LJF agrees that all of its named grounds for counterclaim provided under paragraph 69 of its counterclaim should be dismissed with the exception of paragraph 69(j) which relates to a “loss of contract” claim and paragraph 69(1) which relates to interest on all claims.

Donaldson asks the court to dismiss the claims brought forth in paragraph 69 (j) based on the economic loss doctrine. “[T]he economic loss doctrine generally precludes recovery in negligence actions for injuries which are solely economic.” Excavation Technologies Inc. v. Colombia Gas Company of Pennsylvania, 985 A.2d 840, 841 (Pa. 2009). The economic loss doctrine usually is applicable where there are no physical damages such as injuries or property damages. Aikens v. Baltimore and Ohio Railroad Company, 348 Pa. Super. 17, 501 A.2d 277 (1985). The case currently before the court is specifically problematic. LJF may have, at one time, had a claim for property damage. LJF signed a property damage release and settlement agreement dated October 9, 2009. In that damage release, LJF released Donaldson from every “claim, demand, right, or cause of action involving property damage, down-time, clean-up, repairs, towing and all other non-injury related costs, expenses' and/or fees (with the exception of any claim for loss of contract which is hereby preserved).” The release is signed by a duly authorized representative of LJF.

LJF argues that the economic loss doctrine does not apply to this case because there was, at a time, a claim available for property damages. This argument fails for several reasons. The court finds that it would be counter to public policy to allow LJF to move forward with the loss of contract claim contained in paragraph 69(j) of their counterclaim. The policy behind not allowing damages for economic losses without showing physical damage or injury is that claims for economic losses, such as loss of contract, are not a foreseeable result of negligence. Id. at 21, 501 A.2d at 279. This reasoning holds true in this case. Additionally, in a case where, such as this case, the claims for the property damage are waived, it is impossible for the court to determine whether they actually existed. It could create a situation where unrepresented defendants are taken advantage of by settlements where no physical damage occurred, but that such claims are waived in a release. Then, as in this case, the plaintiff will claim that those damages existed, but were waived in the release. Additionally, the court finds that while the property damage release and settlement agreement dated October 9,2009 is valid, it was not signed by Donaldson or any representative of Donaldson. Therefore, LJF has failed to provide the court with a document that shows Donaldson consented to the contract claim being preserved while all other claims are waived. If the court were to allow defendants to unilaterally preserve a loss of contract claim while releasing defendants from all property damages and injury damages, then anyone who has a loss of contract claim could execute such a release and then attempt to go forward with loss of contract claim and represent to the court that property or injury damages existed but were waived.

Even if Donaldson was aware that the intent was to preserve a loss of contract claim, the court still finds that the economic loss doctrine would apply.

The court therefore grants Donaldson’s preliminary objections and dismisses LJF’s counterclaim with prejudice.

ORDER

And now, June 1, 2010, the court hereby grants Donaldson’s preliminary objections and dismisses LJF’s counterclaim with prejudice.


author: JENKINS, J.,

text:
    Commonwealth v. Hennel

      Jay Hannon, for Commonwealth.

      Timothy E. Possenti, for defendant.
    May 26, 2010
   JENKINS, J.,

Jeffrey Hennel pled guilty to multiple counts of stalking, harassment and terroristic threats for subj ecting four women to numerous phone calls and threatening messages between mid-2007 and 2009. The court sentenced Hennel to nine — 23 months imprisonment and 10 years consecutive probation. Minutes after the sentencing hearing, Hennel said to a deputy sheriff: “What if I go shoot the victims, what if I go blow up their house? ” The Commonwealth moved for reconsideration of sentence immediately after this alarming statement. The court held another hearing and resentenced Hennel to a total of 15 -3 5 months imprisonment and eight years consecutive probation.

In this direct appeal, Hennel argues that the court abused its discretion by increasing his sentence. The court has the authority to impose a new, higher sentence on the basis of post-sentence misconduct. Commonwealth v. Lai, 156 Pa. Commw. 366, 373, 627 A.2d 281, 285 (1993) (citing Commonwealth v. Moore, 225 Pa. Super. 264, 302 A.2d 396 (1973). Hennel’s outrageous remark after sentencing warrants an increase in his sentence, for he exhibits a greater threat to public safety than the court perceived at his first sentencing hearing. Hennel’s amended judgment of sentence should be affirmed.

The factual background of this case comes from affidavits of probable cause underlying the criminal complaints against Hennel and from testimony during his sentencing hearings. In 2007, Price-Waterhouse Coopers LLP (PWC) rejected Hennel’s application for employment as an intern. That summer and fall, Hennel deluged four PWC female employees with phone calls and messages, sometimes over 100 times an hour. Springfield police officers visited Hennel and his family, who assured that the calls and messages would stop.

In mid-January 2008, Hennel resumed his phone calls (including calls to the victims’ home phone numbers) along with threatening, sexually explicit e-mails to female PWC employees. One e-mail stated:

“Hi Kari — I hope you get breast c[a]ncer and die. I also hope you get cervical cancer. The black male foot fetish attacker will attacker you. He will suck your toes and he will stick his finger up your vagina and take all your money. And then the black male foot fetish attacker will stick a soda bottle up your vagina.”

On February 4, 2008, Ridley Township police arrested Hennel and charged him with 214 counts of harassment (no. 8213-08). A magisterial district judge set unsecured bail and released Hennel on condition that he refrain from criminal activity and contact with the victims.

In April and May, Hennel again posted threatening messages on a victim’s Facebook page. On May 30,2008, Ridley police arrested him again and charged him with harassment and other crimes (no. 8226-08). A magisterial district judge revoked his previous bail and re-set bail at $5,000 cash. He remained in jail until August 11, 2008, when the judge reduced his bail to 10 percent of $5,000 and released him, once again on condition that he refrain from criminal activity and contact with the victims.

In late January 2009, Hennel again made dozens of threatening phone calls to the victims at their work and cell phone numbers. On February 26,2009, Ridley police arrested him again and charged him with new counts of harassment, stalking and terroristic threats (no. 1332-09). The magisterial district judge revoked bail on the previous charges, and he remained in jail thereafter.

On June 1, 2009, Hennel pled guilty to charges of stalking, harassment and terroristic threats. At sentencing on July 7, 2009, one PWC employee, Catherine Clay, testified that her voicemail box was constantly full of “strange, rude and disturbing” calls with “spittings screaming, and insulting and name-calling, all of them demanding.” N.T., 7/7/09, p. 6. Her phone rang all day long, but nobody could explain why. N.T., 7/7/09, p. 6. Eventually, she learned that other female employees were targets of identical conduct. N.T., 7/7/09, p. 6. Shortly before Christmas 2007, she read a posting on the Internet about “the horrific and sexually obscene way that this person intended to kill me, my mother, and my female colleagues,” leaving her terrified and unsure whether to come to. work or stay home. N.T., 7/7/09, p. 7. Hennel posted additional obscene and violent messages and made “bold hand gestures” toward her in court, “mocking us and the court.” N.T., 7/7/09, p. 8. Ellen Brotman, attorney for the victims, testified that Hennel continued to harass the victims even after he was arrested and confined in a mental health facility. N.T., 7/7/09, p. 10. His behavior escalated from hundreds of annoying phone calls and hang-ups to offensive and obscene e-mails and voice-mails and finally to death threats posted on the Internet, “couched in the most graphic and frightening terms [,] and not just directed to these women, but to their children and to their mothers.” N.T., 7/7/09, pp. 10-11. This conduct stopped only when Hennel was in prison. N.T., 7/7/09, p. 11. A psychosexual report by Catherine Surbeck, Ph.D. predicted that Hennel’s next step might be physical violence. N.T., 7/7/09, p. 51.

Defense counsel submitted a letter from Henell addressed to the victims which stated:

“I’m sorry for the fear and anxiety I’ve caused you due to my behavior. You did not deserve this in any way. It was wrong, I understand the fear I put you through... and I am sorry from the bottom of my heart. I will never do this again. I respect your wishes and the company’s wishes, and there will never be any contact again. I’m working with my lawyer and doctor on OCD, impulse control, and better handling situations. However, there will be no contact ever again. I’m sorry.” N.T., 7/7/09, pp. 42-43.

The same letter apologized to the court “for my behavior and the stress and anxiety I caused these victims ... This will never happen again.” N.T., 7/7/09, pp. 43-44.

Based on the persistent and escalating nature of Hennel’s crimes, the court imposed an aggregate sentence of nine — -23 months imprisonment and 10 years consecutive probation along with a highly structured residential treatment program with intense supervision. N.T., 7/7/09, pp. 52-56.

Two days later, the Commonwealth filed a timely motion for reconsideration of sentence based on HennePs misconduct several minutes after sentencing. At a hearing on August 17, 2009, Deputy Sheriff Juisti testified that a few minutes after sentencing, as he was transporting Hennel to Probation and Parole for processing, Henell exclaimed: “What if I go shoot the victims, what if I go blow up their house?” N.T., 8/17/09, p. 5. Hennel blurted out this remark voluntarily; it was not in response to questions or comments by any deputy. N.T., 8/17/09, p. 5. The victims were not present. N.T., 8/17/09, p. 5. The court found the deputy sheriff correctly interpreted HennePs remark as threatening the victims. These unsolicited comments “certainly were in contrast to what [Hennel] stated here in open court. And they certainly reflect a lack of impulse and thought control. And that’s alarming.” N.T., 8/17/09, pp. 18-19. The court vacated the original sentence and imposed a new sentence of 15-35 months imprisonment and eight years consecutive probation. Hennel filed a timely post-sentence motion for reconsideration, a timely notice of appeal from the order denying his post-sentence motion and a timely statement of matters complained of on appeal.

In his first argument on appeal, Hennel contends that the court committed an error of law and/or abused its discretion by resentencing him for conduct occurring after his initial sentencing hearing and which was not preserved at the time of his initial sentencing. For the following reasons, Hennel is incorrect.

The court has jurisdiction to impose a new, higher sentence for the defendant’s post-sentence misconduct. Lal, supra, 156 Pa. Commw. at 372-73, 627 A.2d at 285 (court has discretion to increase defendant’s sentence for post-sentence misconduct so long as increase is not result of judicial vindictiveness). The court cannot increase the defendant’s sentence, however, unless the Commonwealth files a motion for reconsideration of sentence within 10 days of the original sentence. Pa.R.Crim.P. 721(B)(1); Commonwealth v. Nickens, 923 A.2d 469, 472 (Pa. Super. 2007) (trial court was without a basis to increase defendant’s sentence absent timely post-sentence motion from the Commonwealth seeking increase).

Hennel’s increased sentence satisfies these standards. The Commonwealth filed a motion for reconsideration two days after the initial sentencing hearing, well within Rule 721(B)(l)’s time limit. Hennel’s contention that this conduct was not preserved on the record during the original sentencing hearing is meritless; the record could not possibly preserve conduct that occurred after the hearing.

The reason for the lengthier prison sentence was not judicial vindictiveness but Hennel’s dishonesty and lack of impulse control, traits illustrated by his remark to the deputy sheriff after he feigned an apology in open court. The deputy sheriff accurately interpreted Hennel’s remark as a threat of violence; it was not mere “ambiguous bitter ruminations” about his sentence, to quote Hennel’s imaginative rationalization. Indeed, this was precisely the type of remark that Hennel tormented the victims with for months. While Hennel did not threaten the victims directly and could not immediately carry the threat out, he did say it to a law enforcement officer, the last person he should have said this to other than the victims and the court. The timing of the threat was remarkable as well; it was moments after being sent to jail, when he should have been at his most contrite, and moments after he falsely assured the court and the victims that he would stop this misbehavior. Such brazen threats, flagrant disregard for his promises and incredibly poor judgment demonstrates that Hennel poses a greater danger to the community than the court originally thought. The court properly increased his prison sentence.

Hennel’s second argument is that the court abused its discretion by granting the Commonwealth’s motion to increase his sentence on the ground that he lacked remorse. The court acted within its discretion by recalibrating Hennel’s prison sentence to meet the individual circumstances of this case.

The standard of review in an appeal from the discretionary aspects of a sentence is well settled:

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007).

In fashioning a sentence, “the trial court must impose a term of confinement consistent with the protection of the public, the gravity of the offense as it relates to the impact of the victim and to the community, and the rehabilitative needs of the defendant. 42 Pa.C.S. §9721. The trial court is vested with broad discretion in determining the defendant’s sentence since the court is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Ward, 524 Pa. 48, 52, 568 A.2d 1242, 1243 (1990). Although the trial court must consider the Sentencing Guidelines, the court is not obligated to impose a sentence deemed appropriate under the Sentencing Guidelines. [Commonwealth v.] Saranchak, 544 Pa. [158,] 177 n.18, 675 A.2d [268,] 277 n.18 [(1996)]. At the same time, the trial court cannot justly sentence a defendant unless it possesses sufficient and accurate information about the circumstances of the offense and the character of the defendant to formulate its judgment. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In imposing a defendant’s sentence, the trial court must state the reasons for the sentence on the record. 42 Pa.C.S. §9721; Pa.R.Crim.P. 1405(b). As long as the trial court’s reasons demonstrate that it weighed the Sentencing Guidelines with the facts of the crime and the defendant’s character in a meaningful fashion, the court’s sentence should not be disturbed. Devers, 519 Pa. at 101, 546 A.2d at 18.” Commonwealth v. Begley, 566 Pa. 239, 301-302, 780 A.2d 605, 642-43 (2001).

Hennel misconstrues the reason for his lengthier prison term. The court did not adopt the Commonwealth’s argument that he lacked remorse; instead, the court decided that he represented a greater threat to the victims and community than it originally thought. During the first sentencing hearing, the court imposed an aggravated sentence at no. 1332-09 due to the impact of Hennel’s crimes on the victims and his persistent, escalating misconduct. N.T., 7/7/09, pp. 52-53. At the same time, the court did not impose as high an aggravated sentence as it could have, since it believed that Hennel had sufficient resolve and impulse control to stop harassing the victims. Hennel’s post-sentence remark to the deputy sheriff convinced the court that his original prison term was too short to protect the victims and general public. In accordance with Begley, the court increased his prison term to satisfy this critical consideration.

Hennel claims in his third argument that the court abused its discretion by increasing his sentence “because of its finding that the County of Delaware lacked services to treat [his] mental illnesses and personality disorders.” Although the state prison system has better mental health treatment programs than Delaware County prison, N.T., 8/17/09, pp. 10,47, this is not what motivated the increase in Hennel’s sentence. As discussed above, the reason for the increase was to better protect the victims and public. The fact that Hennel will obtain better mental health treatment in state prison is a by-product of, but not the reason for, his increased sentence.

HennePs fourth argument is that (a) his post-sentence remark was due to mental illness; (b) he received no treatment between his initial sentencing and the remark; and therefore (c) the court is punishing him for a “manifestation of his illness.” In effect, Hennel contends that the court failed to consider mental illness as a mitigating factor against increasing his sentence — an improper issue for appellate review.

To reach the merits of a discretionary sentencing issue, the Superior Court must determine, inter alia, whether there is a substantial question that the sentence is inappropriate under the Sentencing Code. Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa. Super. 2008) (citing Commonwealth v. Bullock, 948 A.2d 818, 825-26 (Pa. Super. 2008)). The Superior Court “has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for [appellate] review.” Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008) (defendant failed to raise a substantial question for review that trial court abused its discretion at time of re-sentencing him for possession of child pornography, solicitation to prostitution and indecent assault, and corruption of minors; defendant’s bald assertions that trial court focused on seriousness of sexual crime without considering significant factors including his education, lack of a prior record, and fact that no physical conduct was involved with victim failed to show how sentence was inconsistent with Sentencing Code or contrary to fundamental norms underlying sentencing process); see also, Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super. 2007) (defendant’s argument that sentence was abuse of discretion because he had no prior criminal record, had a stable family life, and a good work history failed because it amounted to claim that trial court failed to properly consider mitigating factors when fashioning sentence); Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006) (argument that court failed to consider mitigating factors including defendant’s background, history, criminal record, and overall acceptance of responsibility for the injuries caused to the victim did not raise substantial question that sentence was inappropriate); Commonwealth v. Ladamus, 896 A.2d 592, 595-96 (Pa. Super. 2006) (argument that court neither addressed nor considered defendant’s medical condition or his status as primary caregiver for his mother did not raise substantial question); Commonwealth v. Bullock, 868 A.2d 516, 528-29 (Pa. Super. 2005) (defendant did not raise substantial question by stating that sentence failed to reflect significant mitigating evidence of his serious mental illness history and jury’s finding of guilty but mentally ill); Commonwealth v. Griffin, 804 A.2d 1,9 (Pa. Super. 2002) (claim that trial court did not properly consider mitigating factors of mental incapacity and good behavior while incarcerated did not raise substantial question); Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal denied, 560 Pa. 742, 747 A.2d 366 (1999) (argument that sentencing court did not adequately consider her personal life situation as grandmother who must care for small child did not raise substantial question); Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (argument in indecent assault and simple assault case that court failed to consider “mitigating factor” that defendant approached victim because he was angry that she was driving with her vehicle’s headlights turned off and he was worried about safety of his own child did not raise substantial question); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (claim that court did not give adequate consideration to defendant’s rehabilitative needs and mitigating circumstances did not present substantial question); Commonwealth v. Bowersox, 456 Pa. Super. 260, 263, 690 A.2d 279, 281 (1997) (claim that court failed to consider that defendant had no criminal record, a job offer at the time of sentencing and a 9-year-old daughter did not present substantial question); Commonwealth v. Yanoff, 456 Pa. Super. 222, 236, 690 A.2d 260, 268 (1997) (claim that sentencing court failed to consider mitigating factors in rendering sentence does not raise substantial question); Commonwealth v. Byrd, 441 Pa. Super. 351, 355, 657 A.2d 961, 963 (1995) (contention that court failed to give sufficient consideration to defendant’s use of his incarceration time to improve his education, his use of the Salvation Army programming, and his mastery of his anger did not raise substantial question); Commonwealth v. Urrutia, 439 Pa. Super. 227, 233-34 653 A.2d 706, 710 (1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995) (claim that court did not adequately consider various mitigating factors such as defendant’s good work history, his concern for his children, and fact that victim assaulted him on one occasion did not raise substantial question); Commonwealth v. Williams, 386 Pa. Super. 322, 326, 562 A.2d 1385, 1388 (1989) (en banc), (allegation that sentencing court “failed to consider” or “did not adequately consider” various factors is, in effect, a request that Superi or Court substitute its judgment for that of the lower court in fashioning defendant’s sentence; such an allegation does not raise substantial question).

In view of the above cases—particularly Bullock, supra, 868 A.2d at 528—Hennel’s claim that his mental illness bars an increase in sentence does not present a substantial issue for appellate review.

Hennel next argues that the court abused its discretion by sentencing him in the aggravated range of the Sentencing Guidelines despite finding that he suffers from mental illnesses and personality disorders. Once again, this equates to the argument that the court failed to consider mental illness as a mitigating factor at sentencing, a claim not amenable to review. Bullock, supra.

Hennel’s final argument is that the court incorrectly calculated credit for time served due to Hennel. By the time of his second sentencing hearing on August 17, 2009, Hennel had served approximately eight and one-half months of prison time. The court properly awarded credit for such time served “as the defendant is entitled ...” at all three transcripts. (Certificates of imposition of judgment of sentence, paragraph F, nos. 8226-08, 8213-08, 1332-09.) Since this is a state sentence, the Board of Probation and Parole has the ministerial duty to apply the appropriate amount of credit toward each sentence. This court made no credit time calculations.

For all of the foregoing reasons, the court recommends that Hennel’s judgment of sentence be affirmed.

      . Hennel does not dispute the facts in the affidavits.

      . The terms of imprisonment were as follows: two and one-half— six months for harassment at no. 8226-08 with credit for time served, six — 12 months at no. 8213-08 for harassment with credit for time served, 15 days — 11 months for terroristic threats at no. 1332-09, and three terms of two — eight months for three counts of stalking at no. 1332-09. All terms ran consecutively.

      . The fact that the court reduced HennePs probationary tail from 10 years to eight years is further proof that it did not resentence him vindictively.

      . In any event, Hennel’s mental illness acted as amitigator of sorts, because his increased sentence was still far below the maximum that the court might otherwise have imposed. His two and one-half — six month prison texm for harassment at no. 8226-08 was below the six — 12 month maximum for third-degree misdemeanors; his 15 day — 11 month prison term for terroristic threats at no. 1332-09 was below the two and one-half — five year maximxxm for first-degree misdemeanors; and his three terms of two — eight months for stalking at no. 1332-09 were below the two and one-half — five year maximum for first-degree misdemeanors.


author: JOHNSON, J,

text:
    Gensey v. Taras DMD

      George S. Kounoupis, for plaintiff.

      Patrick J. Reilly, for defendants.
    May 21, 2010
   JOHNSON, J,

I. INTRODUCTION

Before the court for consideration is plaintiff’s complaint filed on April 17, 2009. Plaintiff’s complaint alleges statutory causes of action under the Pennsylvania Human Relations Act, 43 Pa.C.S. §951, etseq. Anon-juiy trial was held on April 27 through 30, 2010.

II. FINDINGS OF FACT

(1) Individual defendant Michael Taras DMD (defendant Taras) at all relevant times was an officer and owner of Michael Taras DMD LLC (defendant LLC).

(2) Plaintiff Christine Gensey was employed by the defendants as an office manager from on or about January 2005 until October 3, 2007.

(3) In December of2006, Gensey informed defendant Taras she was pregnant.

(4) From the date of Gensey’s hiring to 2007, the defendants’ practice grew from 14 patients to over 7,000 patients due, in part, to the loyal and diligent efforts of Gensey who, at the start was the only employee.

(5) From the start of her employment on January of 2005 to her maternity leave on September 12,2007, there was not a single writing or document reflecting any discipline or criticism of Gensey whatsoever.

(6) On or about September 12, 2007, one day before the day she was scheduled to give birth, Gensey went on maternity leave.

(7) Gensey gave birth on September 13, 2007.

(8) Gensey took all steps to minimize the impact of this maternity leave including setting up a computer to work from home; being flexible to shortening her maternity leave and to working with her daughter at the office; and searching to find ways to put her newborn daughter in daycare at the earliest.

(9) During Gensey’s maternity leave, defendant Taras threatened and harassed Gensey to return immediately and asserted that she would henceforth be “unavailable” and no longer at his “beck and call.” He stated that Gensey should put her newborn “with a sitter” and return to work.

(10) On October 3, 2007, less than three weeks after Gensey went on maternity leave, Gensey was terminated by the defendants.

(11) The real reason for Gensey’s termination was Gensey’s pregnancy that necessitated her maternity leave and due to the perception by the defendants that Gensey, as a female caregiver of a young child, would be less available and dedicated to the dental practice than she had been previously.

(12) Gensey exhausted her administrative remedies by filing a complaint and amended complaint with the Pennsylvania Human Relations Commission (PHRC) within 180 days of the termination and by commencing this action more than one year after the initial filing with the PHRC.

(13) The court finds the testimony of Gensey, Ashley Arrecco. and Janelle Arthur completely credible.

(14) The court finds the testimony of defendant Taras, Kimberly David, Mariann George and Jennifer Ruff completely not credible.

(15) Defendant Taras made comments evidencing discriminatory animus to pregnancy.

(16) Defendants’ termination of Gensey was motivated in whole or in part by Gensey’s pregnancy leave.

(17) Gensey had been, right up to her pregnancy leave, delegated significant authority and trust, including with regard to an over two million dollar real estate construction project involving the defendants’ new office.

(18) Defendant Taras is not credible about having to take Gensey’s keys and banning her from the workplace because of disruption into an investigation into insurance claims.

(19) The defendants did not contact Gensey or schedule Gensey for work at any time after they took her keys and sent her home on October 3, 2007.

(20) Defendant Taras is not credible when he says he concluded that Gensey quit based on statements from other staff members.

(21) The defendants never called Gensey to inquire as to why she allegedly quit.

(22) Gensey did not quit, either on October 3, 2007, or at any other time thereafter.

(23) The defendants communicated to Gensey that “she had quit” by letter on or about October 10, 2007, which was a false and pretextual assertion.

(24) Gensey immediately wrote back to defendant Taras on October 12, 2007, stating that at no time did she quit.

(25) The defendants provided no credible reason to believe that Gensey abandoned her job or quit either on October 3, 2007 or at any time thereafter.

(26) Gensey earned $32,578 in 2007 up to the time of her termination by the defendants.

(27) Gensey earned $12,314 in 2008, $26,295 in 2009 and $8,596 in 2010, all of which goes toward mitigation of damages.

(28) The wages Gensey has lost from the time of her termination until the final date of this trial, April 30,2010, is $72,457. Legal interest at six percent per annum from April 17,2009, the date the complaint was filed, to April 30,2010, is $4,347. This brings the total lost wages plus legal interest to the date of trial to $76,804.

III. CONCLUSIONS OF LAW

A. Count I: Plaintiff v. Michael Taras DMD LLC: Pennsylvania Human Relations Act, 43 Pa.C.S. §951 et seq.

(1) Defendant LLC is an “employer” subject to the Pennsylvania Human Relations Act (PHRA), 43 Pa.C.S. §951 et seq.

(2) Gensey has exhausted her administrative remedies by first filing complaints with the PHRC within 180 days of her termination, and this action was filed more than a year after the initial PHRC filing.

(3) The PHRA itself prohibits pregnancy discrimination and the PHRA is read in pari materia with title VIPs Pregnancy Discrimination Act 42 U.S.C. §2000e et seq. (PDA).

(4) A plaintiff alleging pregnancy discrimination based on a plaintiff’s status as a new mother with young children “must demonstrate at the prima facie stage, by introducing evidence sufficient to allow the case to go to a jury, that she was ‘affected by pregnancy, childbirth or related medical conditions’ at the time of the adverse employment action.” Solomen v. Redwood Advisory Company, 183 F. Supp.2d 748, 753 (E.D. Pa. 2002).

(5) Discrimination on the basis of pregnancy does not automatically cease once a baby is bom and, where a plaintiff is on maternity leave at the time the alleged discrimination takes place, “her status as a member of the protected class is evident.” Id., 183 F. Supp.2d at 753-54.

(6) To establish a prima facie case of pregnancy discrimination, a plaintiff must demonstrate the existence of four elements: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was discharged; and (4) after plaintiff’s termination, the employer had a continued need for someone to perform the same work. Id.

(7) Once the plaintiff establishes a prima facie case, a presumption of discrimination is raised and it is the employer’s burden to establish a legitimate, nondiscriminatory reason for the adverse employment action. See Drew v. PHRA, 688 A.2d 274 (Pa. Commw. 1997).

(8) Gensey was on maternity leave and was a member of the protected class at the time of her termination.

(9) Gensey established a prima facie case of pregnancy discrimination.

(10) The defendant LLC produced no legitimate, nondiscriminatory motive for terminating Gensey while on maternity leave, as defendant Taras denied terminating Gensey at all, testimony that the court did not find credible.

(11) Based on the evidence presented, Gensey proved, by a preponderance of the evidence, that her termination was motivated by pregnancy discrimination, and thus, defendant LLC violated the PHRA.

(12) By terminating Gensey, defendant LLC discriminated against Gensey on the basis of her being a mother who needed to take care of a newborn child in violation of the PHRA

(13) Gensey has suffered back-pay losses, for which she may recover, under the PHRA.

(14) Gensey’s back-pay loss damages are to be computed from her last day of paid work on October 9,2007 to the date of trial.

(15) The defendants bear the burden of proving, by a preponderance of the evidence that Gensey failed to mitigate her damages. See Willever v. Sovereign Bank, 42 D.&C.4th 562 (Northamp. Cty. 1998).

(16) The defendants have not met their burden.

(17) Gensey, as prevailing party, is entitled to her attorney’s fees and costs under the PHRA. 43 P.S. §959(f.l).

B. Count II: Plaintiff v. Michael Taras DMD LLC: Retaliation Under the Pennsylvania Human Relations Act, 43 Pa.C.S. §951 et seq.

(18) Gensey failed to prove that the defendants engaged in unlawful retaliatory practices that constitute a violation of 43 Pa.C.S. §951 et seq. of the PHRA.

(19) To establish that a discharge was retaliatory, a plaintiff must show that (1) she engaged in a protected activity; (2) she was discharged subsequent to or contemporaneously with such activity; and (3) there is a causal link between the protected activity and the discharge. Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993).

(20) Protected activity, upon which a plaintiff may base a claim of retaliation, includes opposition to a practice made unlawful by the PHRC or participation in a PHRC investigation, proceeding or hearing by making a charge, testifying or otherwise assisting. Mroczek v. Bethlehem Steel Corp., 126 F. Supp.2d 379 (E.D. Pa. 2001).

(21) “The lodging of generalized complaints, bereft of any mention of discrimination of any kind, falls well outside the scope of protected activity under title VII, the ADEA and the PHRA.” Klimczak v. Shoe Show Companies, 420 F. Supp.2d 376, 388 (M.D. Pa. 2005).

(22) “The absence of any evidence indicating that a decision-maker working for the employer had knowledge of a plaintiff’s protected activity may provide a basis to conclude that no causal link exists.” Id.

(23) Based on the testimony and evidence presented, the court must conclude that there was no retaliation.

C. Count III: Plaintiff v. Michael Taras DMD: Aiding and Abetting Under the Pennsylvania Human Relations Act, 43 Pa.C.S. §951 etseq.

(24) Defendant Taras is a supervisor for purposes of “aiding and abetting liability” under the PHRA, 43 Pa.C.S. §955.

(25) Defendant Taras “aided and abetted” the discriminatory practices of defendant LLC against Gensey

III. DISCUSSION

A. Credibility of the Parties Generally

The content, consistency and reasonableness of Gensey’s testimony, together with her very clear, direct and honest manner of testifying, make her very credible. She is as credible as any witness this court has seen.

The content, inconsistency and unreasonableness of defendant Taras’ testimony, along with his manner of testifying, make his testimony completely not credible to this court.

Defendant Taras made unreasonable statements that any employee could take off any time for any length of time whatsoever, which is not a practice that any business could survive.

Additionally, all of the matters that defendant Taras testified to about sexual comments by Gensey, her wearing of a particular t-shirt, sending photographs of herself to other employees, etc. are not even relevant to this case, but are only meant by defendant Taras to cast Gensey in a bad light which, had Gensey been able to establish a protected activity, would likely constitute retaliatory action, but at the very least it further harmed the credibility of defendant Taras.

B. Count I: Plaintiff v. Michael Taras DMD LLC: Pennsylvania Human Relations Act, 43 Pa. C.S. §951 etseq.

According to his testimony, on October 3, 2007, defendant Taras told Gensey that he needed a week to think about and look at some issues, but that he wanted her keys, she should leave her belongings at the office and he would call her in a week. However, a week later he did not call her. Rather, on or about October 10, 2007, when two of his other employees told him that Gensey had called requesting her personal belongings, he con-eluded that Gensey, his valued employee who had been with the defendants since the beginning of his business, had quit. He did not ever talk to her directly about her “quitting.” He never received any communication from her in any way, whether oral or written, indicating that she had quit. However, he just concluded that she quit, without further question, in spite of the fact that as he himself stated, she was a critical employee to him for the entire length of time that he had been in business.

Moreover, defendant Taras immediately wrote a letter to Gensey to confirm that she had quit and sending her paycheck. Gensey, in turn, promptly sent defendant Taras a response letter indicating that she had not quit. Yet he failed to respond to her letter. If terminating Gensey was not the defendants’ true intention, then one wonders why defendant Taras did not immediately contact Gensey and give her job back.

Additionally, defendant Taras slipped in answering questions to the court when he indicated that he did not have much experience in “firing” people then caught himself and indicated that was just a slip of the tongue. However, firing Gensey is exactly what he did on October 3,2007, in spite of his thinly veiled attempt to cover that up by sending Gensey the letter confirming that she had “quit.” It is clear to the court that, although defendant Taras never used the words “fired” or “terminated,” he did, in fact, terminate Gensey. Gensey clearly fell within the protected class contemplated by the PHRA when she was terminated while on maternity leave, approximately three weeks after giving birth. The defendants terminated Gensey in such a close proximity of time to the birth of her child that pregnancy discrimination is reasonably found to have existed here.

Therefore, based on the lack of credibility of defendant Taras’ testimony, and the completely credible testimony of Gensey, it is clear to the court that the defendant LLC is liable, under Count I of the complaint, for pregnancy based discrimination under the PHRA.

C. Count II: Plaintiff v. Michael Taras DMD LLC: Retaliation Under The Pennsylvania Human Relations Act, 43 Pa.C.S. §951 etseq.

In spite of the fact that the court found Gensey credible, she failed to support her claim for retaliation in this matter because she presented no evidence of retaliation. The Court is cognizant that there are no talismanic words that must be utilized to put an employer on notice of a plaintiff’s discrimination allegation and thereby creating a protected activity under the PHRA. In fact, the court believes that, on October 3, 2007, Gensey asked defendant Taras if the reason she was being asked to turn in her keys and leave the premises was because she had just had her child. However, this general question does not rise to the level of being a protected activity, as it could not have put defendant Taras on notice of Gensey’s allegation of pregnancy discrimination. Therefore, as there was no protected activity, Gensey’s termination was not an adverse employment action that would fall under the category of being retaliatory.

Gensey’s counsel stated that Gensey’s application for unemployment compensation listed the reason for the termination as being Gensey’s pregnancy, thereby putting defendant Taras on notice of her allegation of pregnancy discrimination and creating a protected activity. However, such statement by counsel is not evidence. Counsel failed to elicit said testimony regarding the unemployment compensation application from Gensey. Additionally, he did not put said application into evidence. Therefore, when defendant Taras made derogatory comments about Gensey in his response to the unemployment compensation application, these statements could not be considered retaliatory, as there was no protected act in evidence against which he could have been retaliating.

The only protected activity in evidence in this case is Gensey’s filing of the PHRC complaint. However, the PHRC complaint states that the alleged retaliatory activity began prior to Gensey’s filing. In other words, those acts were not subsequent to or contemporaneous with her engaging in the only protected activity in evidence. Clearly, prior acts cannot be found to be in retaliation for a subsequent protected activity. Accordingly, Gensey has failed to produce evidence sufficient to support a claim for retaliation under the PHRA and the Count II must fail.

D. Count III: Plaintiff v. Michael Taras DMD: Aiding and Abetting Under The Pennsylvania Human Relations Act, 43 Pa.C.S. §951 etseq.

Defendant Taras, acting as Gensey’s supervisor and as a representative of the defendant LLC, terminated her because she was not available to him as much as she had been previously due to her recently giving birth to her infant and he did not want to have to deal with that. He relied on her heavily and expected her to do whatever he needed whenever he needed it. This is proven by the fact that he entrusted the work on his new office building entirely to her, while at the same time expecting her to run every aspect of his office.

Therefore, based on the court’s finding that defendant LLC is liable for pregnancy discrimination, it is equally clear to the court that defendant Taras, as Gensey’s supervisor, is liable under Count III of the complaint for aiding and abetting the pregnancy based discrimination.

IV. CONCLUSION

For the reasons set forth above, the court finds Gensey has sustained claims under Counts I and III of her complaint for discrimination and aiding and abetting. Therefore, verdict is entered in favor of plaintiff, Christine Gensey, and against the defendants, Michael Taras DMD LLC and Michael Taras DMD, in the amount of $76,804, plus reasonable attorney’s fees and costs.

ORDER

. And now, May 21,2010, upon consideration of plaintiff’s complaint and after non-jury trial on April 27 through 30, 2010, and for the reasons set forth in the attached opinion;

It is ordered that verdict is entered in favor of plaintiff, Christine Gensey, and against the defendants, Michael Taras DMD LLC and Michael Taras DMD, in the amount of $76,804, plus costs and reasonable attorney’s fees. A hearing to determine the amount of said attorney’s fees shall be held on June 21,2010 at 9:30 a.m. in Courtroom 5B of the Lehigh County Courthouse. The plaintiff shall serve the defendant with an itemized statement of said attorney’s fees on or before June 9, 2010.


author: SCHMEHL, J.L., P.J.,

text:
    Today’s Housing v. Times Shamrock Communications Inc.

      James A. Wells, for plaintiff.

      J. Timothy Hinton Jr. and Todd J. Cook, for defendants.
    May 17, 2010
   SCHMEHL, J.L., P.J.,

Appellant/ plaintiff Today’s Housing appeals from this court’s December 7, 2009 order, which granted appellees’/defendants’ motion for summary judgment and dismissed with prejudice all of appellant’s claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant brought suit by filing a complaint on March 3,2005. Therein, appellant brought five claims sounding in defamation, and one in commercial disparagement as to all publications. Appellant alleged in part that a series of five newspaper articles, printed by appellees, published from December 17, 2003 through March 5, 2004, and named appellant as the retailer of a defective home and was defamatory. Appellant further alleged that the five articles collectively constituted commercial disparagement, in large part because the articles suggested or implied that appellant was responsible for the manufacture, design and assembly of the defective home. Finally, appellant claimed the series of allegedly defamatory articles caused appellant substantial injury and damage.

On November 28, 2008, after more than two years of inactivity on the case, a termination notice was issued. Appellant filed a statement of intention to proceed on January 7, 2009, following which there was no further activity on the case until appellees filed a motion for summary judgment on September 30, 2009. Appellant filed a response in opposition thereto on October 30, 2009. Appellees filed a brief in support of the motion for summary judgment on November 6, 2009.

Thereafter, this court entered a December 7, 2009 order which granted summary judgment in favor of all appellees, and dismissed appellant’s claims with prejudice. Appellant then proceeded to file the following pleadings in succession: on December 10, 2009, a brief in opposition to the motion for summary judgment; on December 17,2009, a motion for reconsideration of this court’s order granting summary judgment; and on January 6,2010, an appeal to the Superior Court of Pennsylvania. Appellant filed a concise statement of errors complained of on appeal on February 1, 2010.

After rescheduling several argument dates to hear argument on appellant’s motion for reconsideration, beginning with one scheduled for December 30, 2009, this court held argument on February 22,2010. Argument on appellant’s motion for reconsideration was held by conference call, and following argument, this court decided to hold the case in abeyance pending the appeal.

II. DISCUSSION

. Appellant complains of the following errors on appeal:

(1) The trial court committed reversible error by granting defendants’ motion for summary judgment;

(2) The trial court committed reversible error by determining that the statements at issue constituted matters of public concern and that plaintiff is unable to meet its burden of proving falsity;

(3) The trial court committed reversible error by determining that the statements at issue were true;

(4) The trial court committed reversible error by determining that the statements at issue are not capable of defamatory meaning;

(5) The trial court committed reversible error by determining that the statements at issue constitute expressions of opinion;

(6) The trial court committed reversible error by determining that the statements at issue are true and accurate statements taken from court filings and are therefore within the scope of the fair report privilege;

(7) The trial court committed reversible error by determining that plaintiff is a public figure and unable to prove that defendants acted with actual malice;

(8) The trial court committed reversible error by determining that plaintiff’s claim for punitive damages should be dismissed because plaintiff is unable to prove common law malice; and,

(9) The trial court committed reversible error by granting summary judgment without consideration of the matters set forth in plaintiff’s brief in opposition to summary judgment. Moreover, to the extent that the grant of summary judgment resulted from plaintiff’s failure to file a timely brief pursuant to the Berks County Local Rules, the grant of summary judgment violated Rule 239(f) of the Pennsylvania Rules of Civil Procedure.

The above errors complained of on appeal all go to the basis for this court’s decision to grant summary judgment. As such, this court will discuss the first through eighth errors in combination, and then will discuss the ninth error separately.

A. Summary Judgment

This court found the grant of summary judgment to be appropriate in this case. In reviewing a motion for summary judgment, where there is no genuine issue of any material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Pa.R.C.P. 1035.2. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. We 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. Robertson v. Drexel University, 991 A.2d 315 (Pa. Super. 2010). Furthermore, the summary judgment procedure serves to pierce the pleadings and assess the proof in order to see if there is a genuine need for trial. Ertel v. Patriot-News Co., 544, Pa. 93, 100, 674 A.2d 1038, 1042 (1996). The grant of summary judgment was appropriate here because this court found, after a review of the pleadings and after argument held, that appellant had not met its burden, in producing sufficient evidence on issues essential to its case and on which it bore the burden of proof and would fail to produce evidence of facts essential at trial.

B. Defamation

The basis for appellant’s case was appellant’s claim of defamation stemming from each of the five articles published by appellees over the time period of December 17,2003 through March 5,2004, a claim which this court found to be unsupported. In order to support an action for defamation, a plaintiff bears the burden of proving the defamatory character of the communication. 42 Pa.C.S. §8343(a). The plaintiff also bears the burden under this statute of proving in part, that the communication applied to the plaintiff and that the defamatory meaning was understood by the recipient. Id.

The court serves to determine whether a challenged publication is capable of defamatory meaning, and if it finds it not to be, then there is no reason to proceed to trial. Tucker v. Philadelphia Daily News, 577 Pa. 598, 615, 848 A.2d 113, 124 (2004). In evaluating whether a statement is capable of a defamatory meaning, the court considers whether the statement “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.” Id. (citing Birl v. Philadelphia Electric Co., 402 Pa. 297, 303, 167 A.2d 472, 475 (1960) (quoting Restatement (First) of Torts, §559 (1989))). Libel is the malicious publication of printed or written matter which tends to blacken a person’s reputation and expose him to public hatred, contempt or ridicule. Id. (internal citations omitted) “It is not enough that the victim of the [statements]... be embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Id. Finally, the court must view the statements in context. Id.

Truth is a defense to a defamation action. American Future Systems Inc. v. Better Business Bureau of Eastern Pa., 592 Pa. 66, 77 n.8, 923 A.2d 389, 396 n.8 (2007), citing Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767, 770 (1986). The publication need not be absolutely true, but only substantially true. Masson v. New Yorker Magazine Inc., 501 U.S. 496, 516 (1991). Minor inaccuracies in a publication do not rise to the level of falsity if the gist of the allegedly defamatory statement is true. Further, a statement which is pure opinion is not actionable for defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. Dougherty v. Boyertown Times, 377 Pa. Super. 462, 477, 547 A.2d 778, 786 (1988). This court describes each of the five disputed articles below, in order to evaluate whether the articles were of a defamatory character.

The first article of which appellant complains, at Count 1 of the complaint, was an article published December 17, 2003. The article first refers to appellant at the line “(a) late move-in date was only the beginning of the Kirek’s problems with the home’s retailer, Today’s Housing Inc., Shoemakersville.” The court could find no defamation in portraying appellant Today’s Housing as the home’s retailer when, in fact, appellant claimed itself to be the retailer in the complaint. In the complaint, at paragraph 1, “plaintiff, Today’s Housing is a corporation registered under the laws of the Commonwealth of Pennsylvania and engaged in the business of the sale and maintenance of mobile, manufactured and modular homes. ...” (emphasis added) With representations by appellant itself as to its work as a retailer of modular homes, there was no defamatory character to the beginning of the first article.

Later in the same first article, appellant claimed the text was defamatory because it implied that appellant changed the manufacturer’s specifications. However, a close reading of the article itself shows that the first party named therein is the home’s retailer — appellant. The article continued on to state that aspects of the home were not built to the manufacturer’s specifications, and appellant claimed that the implication was that appellant itself built the home. However, the article clearly stated that the home was built by an unspecified party, and a reader can easily draw a distinction between the two parties of the builder and the retailer. Further, the point at which the article references changes made to the manufacturer’s design immediately follows the sentence stating that aspects of the home were not built according to the manufacturer’s specifications. As such, the article seems to reference a builder that made changes to the manufacturer’s design, rather than the home’s retailer.

Further, much of this first article constitutes opinion of the quoted homeowners. The quote “she (homeowner Clara Kerik) believes the company isn’t being honest” clearly constitutes opinion of the speaker. A neighbor who remarked that “(w)hen they first started building trailers, they were shoddy” also expressed an opinion that does not constitute defamation on the part of the defendant.

Even if this first article were read to attribute responsibility to appellant for the cited defects in the home, this text does not rise to the level of defamation. This first article certainly could not be read to rise to the level of “harm which... grievously fractured his standing in the community of respectable society.” The defects in the home would certainly be a problem which any home retailer would need to address, but are an issue which can arise with some frequency in home sales, such that there was nothing in the article that would fracture appellant’s standing as a home retailer.

Further, the main problem that would be attributed to appellant was the then-refusal to remedy the problems cited by the homeowners, which does not rise to the level of defamation, and is demonstrated to be a truthful statement in later articles. The article cited to representatives of the state Department of Community and Economic Development (DCED) who described the flaws in the home which included 11 violations of U.S. Department of Housing and Urban Development (HUD) codes. These flaws included detached roof shingles, an improperly ventilated crawl space, an uneven floor, a 1.5” gap where two sections of the house were joined, and a grading that prevented water from moving away from the home. The article also quoted a DCED representative who stated that appellant had made progress in rectifying some of the flaws, with a somewhat positive light cast on appellant. The article also quoted a representative of appellant who stated that the party was aware of the problems, and was working to resolve them, constituting a statement made by appellant, not appellee, and further, demonstrating the veracity of the claims of the flaws in the home. Finally, with respect to the first article, the defects of which the homeowners and the public officials complained were shown in the later articles to be appellant’s responsibility, constituted truth, and were not defamatory.

The second article of which appellant complained was published on December 30, 2003. This article in great part described another private couple’s belief as to state of their home and basis for their original suit. Again, as opinion, there is no defamatory character in this text. In addition, the article describes the counter-suit by appellant based in contract, a statement of fact as to appellant’s own legal action, and again not defamatory. Finally, this article also quoted representatives of appellant: statements which themselves could not be defamatory when published by the party bringing suit.

The third article of which appellant complained was published on January 3,2004. Entitled “Couple’s House Woes Gets Attention,” this article was similar to the first two, and again did not qualify as defamatory in the court’s view. The article again quoted opinions of the homeowners, records by government officials, and flaws in the house which are demonstrated to be accurate in the later articles. Additionally, appellant’s own representative was quoted as describing how appellant took responsibility for the flaws complained of. The caption which appellant cited in its complaint was not an inaccurate statement, but merely depicts the sign the couple erected in their front yard, which read that Shoemakersville-based “Today’s Housing Inc failed to deliver on promises and left them with a home full of HUD code violations,” and had attracted a lot of attention in the past few weeks. The assertion in that sentence is not the newspaper’s belief in veracity as to the claims, but is a statement that the sign has attracted attention. Other parts of the article include reference to a BBB spokeswoman who would not release information about complaints against appellant but described most of the complaints as pertaining to repair and service issues. Again, this a truthful accounting — merely a fact as to complaints filed and their type, and did not represent any defamation on the part of the defendants

The fourth article of which appellant complained was published on January 6,2004. There was nothing within the article that could be characterized as “false, misleading or untrue,” as appellant alleged, nor did appellant state with any specificity the manner in which the contents of the article could be deemed “untrue.” This article largely quotes a representative of appellant’s own corporation — “general manager of a housing firm accused of questionable workmanship is optimistic the issues will be resolved. James S. Miller, who was hired in early November by Today’s Housing Inc., Shoemakersville, said he is shifting his focus to the fixture of the company while trying to iron out mistakes of the past.” Miller himself in this article described how appellant worked with dozens of subcontractors for a variety of different jobs, he then says “most of all retailers (i.e., appellant) use certified set up crews to install the houses ... .We may have four set up crews that we work with. All of the subcontracted crews are monitored by the project manager; whose job it is to go out and make sure thatworkis being done in a timelyfashion, etc... (w)e’ve sold hundreds of homes in this market for the last six years. Have there been issues? I’m sure there have been, but I can only go forward from here. ...” (emphasis added) Certainly, a statement by appellant’s own repre- . sentative does not constitute a statement published by another that can be characterized as defamatory.

Furthermore, the earlier articles focused on the homeowners and their homes, whereas this article showcased appellant as working to resolve the flaws. This fourth article lends further support for the reasonable inference that all the statements in the series of articles were accurate and truthful, in that appellant as the retailer was responsible for the final outcome of the home installation, and subcontracted other parties to come in and install the home. Furthermore, the article directly quotes Miller later saying “we’re not going to deliver a perfect home. These homes are hauled over the highway. There are certain settling issues that are going to take place, so what our paperwork says is that we’ll come back and repair your cracks initially, and we might even have to come back after that.” Clearly, appellant was the party responsible for any defects, admitted there were defects, admitted responsibility for the defects, admitted responsibility for the repair of those defects, and showed the contents of the five articles to generally be true, at times mere opinion and always non-defamatory.

The fifth article of which appellant complained was published on March 5, 2004. That article further quotes the same representative of appellant corporation, who said he was aware of three violations that still had to be fixed, two dealt with repair work that was done but not up to the standards of the homeowner, and the third involved a support issue that was not addressed in the original inspection and needs to be corrected. Presumably, appellant wouldn’t have had a representative making responses directly addressing the allegations and admitting to them if in fact appellant truly thought they were false. This last article is entitled “Home’s Deficiencies Being Repaired.” The article also references a newly named party, Champion Homes Inc., the home’s manufacturer, drawing a clear distinction between the retailer and the manufacturer, and describing how Champion Homes Inc., the home’s manufacturer, has joined appellant to review the repair work and how the two companies have come together to make repairs — retailer and manufacturer.

Nothing otherwise is different in this article from the articles already evaluated above as far as not containing any defamatory statements. If anything, this article portrays appellant in a positive light, showing appellant’s initiative to remedy errors made in work, and an attempt to build a successful company going forward. This court found the articles were fair, accurate and complete, and gave both sides of the dispute a chance to voice their opinion, and eventually portraying appellant in even a positive light.

Further, although this court declined to consider the public figure/limited purpose public figure argument put forth by appellees in their motion for summary judgment and brief in support thereof, an argument could fairly be made that appellant did posit itself as a limited purpose public figure in their public response via the newspaper to the article and claims by the private family that posted the sign in their yard, as well as by their counter-suit based in contract. Similarly, although this court found it not necessary to consider whether the events at issue in the articles rose to the level of a public matter, an argument could easily be made that the events did constitute public concern due to the involvement of the Department of Housing and Urban Development in issuing violations for the home defects.

As to appellant’s ninth and final error complained of on appeal, it was a physical impossibility for this court to consider appellant’s brief in opposition to summary judgment, when appellant’s brief was filed on December 10,2009, three days after this court had already entered its order of December 7, 2009, granting the motion for summary judgment. Further, appellees’ motion for summary judgment and supportive brief were filed on November 6, 2009, such that appellant had ample time to reply to the motion for summary judgment and failed to do so in a timely manner.

Nonetheless, this court addresses the second half of appellant’s final error complained of on appeal. The grant of summary judgment was not entered based on appellant’s failure to comply with local rules to file a timely responsive brief. This court granted summary judgment because of appellant’s failure over the several years of the case’s history to adduce sufficient evidence on issues essential to appellant’s case. State and local rules authorized this court to act on the motion for summary judgment following lack of a response from appellant. Appellant claims that the grant of summary judgment was in violation of Pa.R.C.P. 239(f), which states that “(n)o civil action or proceeding shall be dismissed for failure to comply with a local rule.” Local Berks County R.C.P. 1035.2(a)(2) governs the time for a non-moving party to respond to a motion for summary judgment, which is in accordance with and refers back to Pa.R.C.P. 1035.3(a) as the basis for the local rule. Both of these rules list the time to respond to a motion for summary judgment as thirty days. Pa.R.C.P. 239(f) has been interpreted to apply to local rules which supersede state procedural rules. See Boatin v. Miller, 955 A.2d 424 (Pa. Super. 2008). The local rules here reflect the state rules, and although this court was authorized, per the rules, to enter its decision on summary judgment, it was not the rules alone that made this decision persuasive, but also appellant’s failure to demonstrate there to be any genuine issue of material fact. This court could not have and did not grant summary judgment solely based upon a procedural defect such as appellant’s failure to file its response to the motion for summary judgment within 30 days, and instead granted summary judgment on the merits.

In sum, this court found the articles not to have been capable of defamatory meaning, and most certainly not to have risen beyond the level of mere embarrassment or annoyance such that the publications amounted to exposition to public hatred, contempt or ridicule. The articles portrayed appellant in an accurate and fair manner. The last two articles quote appellant’s own representative, who admitted appellant’s responsibility for the defects in the home. Further, the articles not only portrayed appellant in a fair manner that did not damage appellant’s reputation, but the later articles even portrayed appellant in a positive light, in quoting representatives of appellant company, and chronicling the positive work appellant was undertaking. As the later articles in the series of five articles demonstrated, the earlier articles published statements which were clearly not false. A basic tenet of defamation law is that the truth is always a defense.

For all of the above stated reasons, this court respectfully recommends that the instant appeal be denied.

The prothonotary shall forward the remainder of the file to the Superior Court.