author: BRENNER, J,

text:
    Forrest v. St. Luke’s Hospital

      Aaron J. Freiwald, for plaintiff.

      Richard F. Stevens and Timothy T. Stevens, for defendant.
    June 13, 2005
   BRENNER, J,

ORDER

Now, June 13,2005, upon consideration of plaintiffs’ motion to strike objections raised during the deposition of Steven Schweon R.N., motion to compel the re-deposition of Trina Steele R.N., plaintiffs’ motion to strike objections and compel responses to request for production of documents, and plaintiffs’ motion to strike objections and compel response to supplemental request for production of document number 4, and defendant’s responses thereto, and after oral argument conducted before the undersigned on May 23,2005:

It is hereby ordered that plaintiffs’ motion to strike objections raised during the deposition of Steven Schweon R.N., motion to compel the re-deposition of Trina Steele R.N. and plaintiffs’ motion to strike objections and compel responses to request for production of documents are granted in part and denied in part.

It is further ordered that the plaintiffs may re-depose Steven Schweon R.N. within the applicable discovery period and inquire about the investigation he conducted into the causes of the infections that are the subject of the within lawsuit, including the findings and conclusions of that investigation.

It is further ordered that the defendant shall produce Trina Steele R.N. for re-deposition within 20 days of this order to explore with the witness the nature of her communications with Steven Schweon R.N., and with the plaintiffs.

It is further ordered that the defendant shall provide responses to document requests nos. 1, 5, 8, 10, 13, and 18 within 20 days of the date of this order.

It is further ordered that the plaintiffs’ motion to strike objections and compel responses to supplemental request for production of document number 4 is denied.

      . The within matter is a medical malpractice action in which the plaintiffs, Kevin Forrest and Michael Trigiani, developed sternal wound infections following heart surgery performed at St. Luke’s Hospital, Bethlehem Campus on October 28, 2003 and October 27, 2003, respectively. Both plaintiffs were diagnosed with a sternal wound infection arising out of the same virulent strain of bacteria and sepsis.
      On February 18,2005, Steven Schweon R.N., St. Luke’s Hospital’s Coordinator of Infection Control and Prevention, was deposed. Steven Schweon R.N. testified that he initiated an investigation into the possible causes of the infections. Indeed, Steven Schweon R.N. testified that he was concerned that the operating room was the source of the infections in light of the fact that there were two patients with uncommon sternal wound infections so close together. Steven Schweon R.N. was asked numerous questions about the investigation and his conclusions including the cause of the plaintiffs’ infections. Defendant’s attorney objected to these questions and instructed Steven Schweon R.N. not to answer. The bases for the defendant’s objections were the Pennsylvania Peer Review Protection Act, Act of July 20, 1974, P.L. 564, no. 193, §§1-4, as amended, 63 P.S. §§425.1-425.4 and the Medical Care Availability and Reduction of Error Act, 40 P.S. §1303.311 (pertaining to investigations performed by a hospital’s Patient Safety Committee) (MCARE Act). Specifically, St. Luke’s Hospital argues that the plaintiffs’ infections constituted a “sentinel event,” which triggered a sentinel event investigation that is protected under both the Peer Review Act and the MCARE Act. Consequently, on or around May 9, 2005, the plaintiffs filed the within motion to strike objections raised during the deposition of Steven Schweon R.N.

        In the present case, immediately preceding the deposition, the defendant produced several policies and procedures of St. Luke’s Hospital, including the Sentinel Event Process policy, the Infection Control Related Sentinel Event policy, the Infection Control Committee policy, and the Infection Control Program Surveillance policy. At the deposition, Steven Schweon R.N. testified that, when he found out that two in-patients had the same infection, he became concerned that there was a connection between the causes of the infection. An investigation into the cause of the infections was initiated. At his deposition, Steven Schweon R.N. claimed that the investigation was a “sentinel event investigation,” governed by the defendant’s Sentinel Event Process policy and the Infection Control Related Sentinel Event policy. We cannot agree.
      This court recognizes that section 311 of the MCARE Act protects from discovery documents, materials and information that was solely prepared or created for the purpose of compliance with the Patient Safety Act, which is contained within the MCARE Act. 40 P.S. §1303.311(a). The MCARE Act specifically provides that the confidentiality protections shall “only apply to the documents, materials or information prepared or created pursuant to the responsibilities of the Patient Safety Committee or governing board of a medical facility ....” 40 P.S. § 1303.311(c). In the present case, Steven Schweon R.N. did not testify at his deposition that the investigation at issue was commenced at the request of or by the defendant’s Patient Safety Committee. Furthermore, neither the defendant’s Sentinel Event Process policy nor the Infection Control Related Sentinel Event policy makes any mention of a Patient Safety Committee. Thus, this court finds that the investigation was not done within the confines of the Patient Safety Committee and therefore the objections based on section 311 of the MCARE Act are overruled. Defendant further argues that findings of Steven Schweon R.N’s investigation are privileged and protected from discovery pursuant to the Peer Review Act because his investigation was a sentinel event investigation. However, according to the Sentinel Event Process policy, a sentinel event must occur for there to be a sentinel event investigation. However, a review of the defendant’s Sentinel Event Process policy which defines sentinel event, as well as the acknowledgment from Steven Schweon R.N., demonstrate that an enumerated sentinel event did not occur in order to trigger a sentinel event investigation. See St. Luke’s Hospital’s Sentinel Event Process policy. Indeed, by the defendant’s own definitions, the contracting of an infection does not amount to a sentinel event. Moreover, the Sentinel Event Process policy specifically states that “all events that are or may be considered sentinel will be reported immediately to the risk manager. The risk manager will determine whether the event constitutes a sentinel one.” See St. Luke’s Hospital’s Sentinel Event Process policy. Thus, the investigation performed by Steven Schweon R.N. was not a sentinel event investigation afforded the protection of the Peer Review Act.
      Next, this court notes that the Peer Review Act provides:
      “The proceedings and records of the review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional healthcare provider arising out of matters which are the subject of evaluation and review by such committee, and no person who is in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any member thereof.” 63 P.S. §425.4.
      However, the Peer Review Act exempts information available from an original source. 63 P.S. §425.4. Specifically, the Peer Review Act states:
      “Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.” 63 P.S. §425.4.
      In the within matter, defendant argues that Steven Schweon R.N.’s investigation was conducted on behalf of the Infection Control Committee. Steven Schweon R.N. testified at his deposition that, although a writing was prepared that outlines his conclusions and findings, the Infection Control Committee was given only a verbal overview. While it is true that a copy of Steven Schweon R.N. ’s report was furnished to Donna Sabol, assistant vice president of Network Performance Improvement, Steven Schweon R.N. did not discuss his investigation at a committee meeting. Only discussions conducted at a peer review meeting are protected from discovery. Moreover, Steven Schweon R.N.’s findings are not shielded from discovery under the Peer Review Act because, as the author of the report, he is the original source. See Tirado v. Lehigh Valley Hospital, 49 D.&C.4th 110 (Lehigh Cty. 2000).
      Overall, this court finds that Steven Schweon R.N. conducted the investigation as part of the patient care and treatment process; in other words, to prevent a potential unanticipated death. Indeed, the purpose of the investigation was to determine the cause of the infections in order to treat the plaintiffs and to determine whether other patients were at risk of infection. The investigation was not initiated for the purposes of prospective policy changes, i.e., quality assurance reasons which include an effort to review or improve infection practices, policies systems, protocols or patient care in general.
      Finally, this court notes that, in the interest of justice, the plaintiffs are entitled to the details of the investigation. Indeed, it would be pa7 tently unfair to allow the defendant to use the information that it seeks to shield from discovery as support for its position that the infections are unrelated and merely coincidental. Denying access to the very information that the defendant intends to use to support its position that the infections are unrelated, would place the plaintiffs at an unfair disadvantage.
      This court well recognizes that the peer review privilege serves a most important public purpose and must be scrupulously upheld. However, by the same token, it must never be used as a subterfuge in an attempt to withhold information to which a party is justly entitled.

      . On April 26,2005, the deposition of Trina Steele R.N., was taken. Trina Steele R.N. was one of the healthcare providers who cared for the plaintiffs during their October of 2003 admissions. Trina Steele R.N. is a cardiovascular care coordinator who, among other things, helped in identifying in postoperative patients signs or symptoms of infection. Trina Steele R.N. testified that, as part of her job, she gathered hospital infection data for submission to the Society of Thoracic Surgeons National Database. In turn, the Society of Thoracic Surgeons routinely publishes reports to the hospitals analyzing the infection rate data submitted. Trina Steele R.N. knew that both plaintiffs suffered post-operative infections to their sternal incisions. At some point after both plaintiffs were released from the hospital, Trina Steele R.N. received an e-mail communication from Steven Schweon R.N. relating to his conclusions of the investigation. However, defendant’s counsel refused to allow Trina Steele R.N. to answer any questions concerning the substance ofthe e-mail communications between herself and Steven Schweon R.N. because of the protections of the Peer Review Act and the MCARE Act. The record indicates that the e-mail communications pertained to Steven Schweon R.N.’s findings regarding the root cause of the infections. Trina Steele R.N. was not a member of the Infection Control Committee or the Performance and Improvement Committee. Thus, Steven Schweon R.N.’s disclosure of his findings and conclusions via the internet to Trina Steele R.N. clearly were not for quality assurance purposes, but rather for patient care and treatment. Thus, the e-mail communications between Steven Schweon R.N. and Trina Steele R.N. are not privileged and are not shielded from discovery based on the Peer Review Act.

      . On April 26, 2005, the plaintiffs served an initial set of document requests on defendant. The defendant objected to document request nos. 1, 5, 8, 9, 10, 13, 14, 17 and 18 on the basis that the documentation sought is privileged information pursuant to the Peer Review Act and/or the Health Care Quality Improvement Act of 1986, 42 U.S.C. §§11101-11152. Steven Schweon R.N. initiated the investigation and evaluated the circumstances surrounding the infections developed by the plaintiffs. Steven Schweon R.N.’s investigation included notes, memorandum letters, incident reports, e-mails and other writings relating to the plaintiffs. Also, Steven Schweon R.N. conducted interviews of health-care providers regarding the cause of plaintiffs’ postoperative infections. For the reasons stated above, the defendant’s objections are overruled and the defendant shall provide responses to request nos. 1, 5, 8, 10, 13 and 18.
      To plaintiffs’ document request no. 7, the defendant responded that copies of the sterilization records for the surgical equipment used during the surgeries on the plaintiffs are “unknown” as the investigation is still ongoing. It is axiomatic that the defendant cannot provide the plaintiff with that which it does not have. However, once this information is acquired, this information is to be timely provided to the plaintiffs.
      Furthermore, this court finds plaintiffs’ request nos. 9, 14 and 17 are overly broad and unduly burdensome and suggest a fishing expedition. Thus, the objections to request nos. 9, 14 and 17 are sustained.

      . This court finds that plaintiffs’ request for a copy of St. Luke’s Hospital quarterly surveillance data for cardiac surgery published in the years 2001 through 2003 is unduly burdensome and broad. Thus, this court concludes that the request should be limited to the surveillance data generated for the respective plaintiffs, Kevin Forrest and Michael Trigiani.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Scordato v. Dyess

      Thomas Scordato, pro se.

      Jeffrey W Stover and Susan E. Bardo, for defendant.
    July 28, 2005
   GRINE, J.,

Before this court for consideration are the preliminary objections of defendant Adam P. Dyess of Sterling Wholesale Unlimited to plaintiff Thomas Scordato’s complaint. Defendant objects to plaintiff’s complaint on the grounds that this court lacks the necessary personal jurisdiction to continue this action in the Commonwealth of Pennsylvania and, alternatively, that Centre County Pennsylvania is not the proper V'enue for this action. Both plaintiff and defendant submitted written briefs in support of their respective positions, which this court has reviewed. This court finds that it does not have personal jurisdiction over the defendant and, accordingly, sustains defendant’s preliminary objection as to personal jurisdiction. Because this court finds it lacks personal jurisdiction, defendant’s preliminary objection as to venue need not be addressed.

PRELIMINARY DISCUSSION

Plaintiff is a resident of Bellefonte, Centre County, Pennsylvania. Defendant has at all times relevant to the present action been a resident of Nevada.

Plaintiff filed his complaint in the Court of Common Pleas of Centre County Pennsylvania following the purchase of a 1981 Mercedes-Benz 240D automobile. Plaintiff purchased the automobile from defendant via an online auction conducted through eBay. Plaintiff’s complaint ¶1. After viewing the posting, plaintiff contacted defendant to inquire about the mileage listed in the auction advertisement. Id. Defendant assured plaintiff the mileage listed as 71,825 miles was accurate. Id. Plaintiff subsequently purchased the vehicle from defendant based on defendant’s representation that the mileage was accurate. Id.

The automobile in question was in defendant’s possession in the state of Nevada at the time of sale. Plaintiff mailed his payment for the automobile to defendant in Nevada via Federal Express and also arranged to have the vehicle shipped from Nevada to Pennsylvania through another carrier. The vehicle arrived in Lamar, Pennsylvania, after which plaintiff drove the vehicle to his home in Bellefonte. Id. at ¶2.

From the time he took physical possession of the automobile, plaintiff began to suspect that the car was not in as good of a condition as defendant represented. Id. at ¶4. Before the vehicle could be driven from Lamar it first had to be jump-started. Id. Additionally, the alternator light was on indicating the alternator was faulty. Id. Finally, upon reaching his residence, plaintiff examined the documentation for the vehicle located in the glove box. The original service maintenance booklet indicated that in 1987 the mileage of the car was 75,817. Id. at ¶6. Plaintiff also contacted the previous owners of the vehicle and learned at the time the vehicle was traded in, it had over 250,000 miles on it. Id. at ¶8. Upon learning that defendant had provided false information to plaintiff, plaintiff filed the now-contested complaint in the Centre County Court of Common Pleas.

DISCUSSION

Defendant contends that Pennsylvania does not have personal jurisdiction, general or specific, over him. Defendant has at all times relevant to the present action been a resident of Nevada. Additionally, the vehicle at the center of this suit was in the state of Nevada until plaintiff made arrangements to ship the vehicle from Nevada to Pennsylvania.

This court must first remark that finding no personal jurisdiction over defendant would result in the dismissal of plaintiff’s complaint, as such defendant’s preliminary objections should be sustained only if it is quite clear that no jurisdiction exists. Hall-Woolford Tank Co. Inc. v. R.F. Kilns Inc., 698 A.2d 80, 82 (1997), citing King v. Detroit Tool Co., 452 Pa. Super. 334, 682 A.2d 313 (1996). Additionally, the burden of establishing no jurisdiction exists rests on defendant, thus this court must examine the evidence in a light most favorable to the plaintiff. Id.

“General jurisdiction is founded upon a defendant’s general activities within the forum which evidence continuous and systematic contacts with the state.” Id. at 82. On the other hand, “[sjpecific jurisdiction... is focused upon the particular acts of the defendant which gave rise to the underlying cause of action.” Id.

It is quite clear to this court; that it lacks general jurisdiction over the defendant The defendant was, and continues to be, a resident of the state of Nevada. Plaintiff has not alleged in his complaint that defendant’s sale of this particular automobile was part of a continuous and systematic contact with the state of Pennsylvania. Plaintiff has not alleged that defendant regularly sells automobiles to Pennsylvania nor that defendant ever traveled to Pennsylvania in order sell a vehicle, much less the one at issue in the present case.

Finding no general jurisdiction over the defendant, this court must look to whether defendant’s particular actions in this instance are sufficient for this court to assert specific jurisdiction over him, which can only be done through Pennsylvania’s long-arm statute. In order to meet the constitutional requirement necessary to assert personal jurisdiction under the long-arm statute, “a defendant’s contacts with the forum state must be such that the defendant could reasonably anticipate being called to defend itself in the forum.” Id. (citations omitted) “Random, fortuitous and attenuated contacts cannot reasonably notify a party that it may be called to defend itself in a foreign forum . . . the defendant must have purposefully directed its activities to the forum and conducted itself in a manner indicating that it has availed itself of the forum’s privileges and benefits such that it should also be subject to the forum state’s laws and regulations.” Id. at 82-83. (citations omitted)

Again, defendant insists Pennsylvania lacks jurisdiction over him as he has never had any substantial, meaningful contact with the Commonwealth of Pennsylvania. Defendant never traveled to Pennsylvania in order to complete this sales transaction. On the contrary, defendant notes, and plaintiff admits, that plaintiff made the initial contact regarding the sale of this automobile. Plaintiff’s complaint ¶1. Plaintiff mailed payment to defendant in Nevada and arranged for the vehicle to be shipped from Nevada to Pennsylvania. The only contact defendant has ever had with the Commonwealth of Pennsylvania as alleged by plaintiff is his contact with plaintiff concerning the sale of this automobile. However, as defendant notes, an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts [with] the other party’s home forum.” Hall-Woolford, 698 A.2d at 83, citing Kubik v. Letteri, 532 Pa. 10, 18, 614 A.2d 1110, 1114 (1992). (emphasis in original)

In support of his objections to jurisdiction, defendant directs this court’s attention to factual similarities between this case and the case of Hall-Woolford Tank Co. Inc. cited supra. In Hall-Woolford, plaintiff was a manufacturer of wooden tanks and fermenters. Plaintiff contacted defendant, a New York-based company, about utilizing their lumber-drying services. Plaintiff purchased a shipment of wood from Florida and arranged for its transportation to the defendant’s facility in New York. Defendant dried the wood at its facility, which was then shipped to plaintiff in Pennsylvania. Upon receipt of the dried wood, plaintiff claimed the wood was damaged and unsuitable for its purpose and filed an action in the Philadelphia County Court of Common Pleas. In determining that the Philadelphia County court lacked jurisdiction over defendant, the Superior Court noted that plaintiff contacted defendant about using defendant’s services, and plaintiff arranged for the lumber to be shipped from Florida to defendant’s facility in New York. Though there was some dispute over defendant’s contacts with Pennsylvania, the Superior Court determined that any contact initiated by defendant was not substantial, but rather attenuated and random. Id. at 84. In other words, but for plaintiff’s initially contacting defendant regarding use of its services, defendant would have had no reason to contact anyone in Pennsylvania.

This court finds that the contact defendant had with Pennsylvania in the present case to be similar to the defendant in Hall-Woolford. Plaintiff initially contacted defendant regarding the purchase of the automobile. Plaintiff sent payment to defendant. Plaintiff arranged for shipment of the automobile from Nevada to Pennsylvania. Defendant never initiated contact with the present forum in order to sell his automobile. Defendant never entered the Commonwealth to contract for, or complete the sale. The only arguable contact that defendant may have had with the Commonwealth was in sending the title paperwork for the vehicle to plaintiff after plaintiff initiated contact with defendant to purchase the vehicle. Such contact can only be described as attenuated and random.

Since defendant has sufficiently supported his jurisdictional objection, the burden now shifts to plaintiff to “prove that there is statutory and constitutional support for the court’s exercise of in personam jurisdiction.” Hall-Woolford, 698 A.2d at 82. Plaintiff makes his case for personal jurisdiction on the grounds that defendant sold his vehicle through an Internet site. Determining personal jurisdiction when a foreign company’s contact with the local forum is through an Internet website has only recently been addressed by courts of this Commonwealth. It is agreed that only if the foreign company can be brought under Pennsylvania’s jurisdiction through the long-arm statute will jurisdiction be found. However, determining whether the long-arm statute applies in cyber-space can be difficult. The Third Circuit’s district courts determined a “sliding scale” of jurisdiction which courts of this Commonwealth have since adopted.

In Zippo Mfg. Co. v. Zippo Dot Com Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), the court determined, “The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” Thus, two extremes emerge with wide mid-ground. At one end of the spectrum is the company who conducts most of its business with foreign companies through the Internet. The contact with a foreign jurisdiction is extensive, consistent, and repeated. At the other end of the spectrum are passive contacts where information is posted on the Internet and is viewable by individuals from a multitude of jurisdictions. In order to determine jurisdiction, this court must look at “the level of interactivity and commercial nature of the exchange of information that occurs on the website.” Efford v. The Jockey Club, 796 A.2d 370, 374 (Pa. Super. 2002). (citations omitted)

eBay is a website that can be aptly described as being in the middle ground. eBay allows individuals to post information regarding an item for sale that can then be viewed by individuals from multiple foreign jurisdictions. eBay can be likened to a cyber flea market where individuals wishing to sell items have a space to put their items on display for individuals to view and perhaps purchase. In that sense, eBay is interactive, but it is not so interactive that individuals can conduct all their business through the Internet. At some point interaction via the website ceases and buyer and seller must communicate outside of the Internet forum in order to complete the transaction.

In support of his contention that Pennsylvania may assert jurisdiction in this case, plaintiff cites the case of Mar-Eco Inc. v. T & R and Sons Towing and Recovery Inc., 837 A.2d 512 (Pa. Super. 2003). In Mar-Eco, the lower court determined that Pennsylvania had jurisdiction over the defendant, the Maryland-based Waldorf Corporation, because “Waldorf regularly conducts business in Pennsylvania through advertising and its worldwide [website], www.waldorfford.net, where customers can order parts, schedule service, apply for financing, calculate payments, search Waldorf’s new and used vehicle inventory and apply for employment.” 837 A.2d at 514. In affirming the determination of the lower court, the Superior Court looked at the high level of interactivity of the defendant’s website and determined “the activity on the website was of a commercial nature that permitted extensive interaction with the host computer and would only serve to enhance Waldorf’s commercial business.” Id. at 517.

While advertising vehicles for sale through eBay would most certainly enhance defendant’s commercial business by expanding the number of individuals who would be able to view vehicles for sale, there is nothing to indicate defendant regularly conducts his business via the Internet. This court also finds a critical distinction between the defendant in the present case and the defendant in Mar-Eco. The defendant in Mar-Eco operated its own website exclusively for its business. The website in Mar-Eco allowed users to schedule an appointment with the company’s service department, request specific price quotes on specific vehicles and exchange trade-in information, and access a number of forms regarding financial services available. Id. In the present case, all plaintiff could really do through the eBay advertisement was glean a few pieces of rudimentary information regarding the vehicle for sale. Any detailed information regarding the vehicle plaintiff wanted had to be obtained directly from the defendant. Thus, defendant’s use of the eBay website to advertise his vehicle for sale cannot be determined so interactive that Pennsylvania could justifiably use its long-arm statute to assert jurisdiction over the defendant.

Having determined that Pennsylvania’s long-arm statute cannot be utilized to assert jurisdiction, this court finds that plaintiff has not been able to establish statutory or constitutional support for his claim that Pennsylvania has jurisdiction over his claim. Additionally, this court can find no means by which it can, in good faith, assert jurisdiction over defendant and must accordingly sustain defendant’s preliminary objection as to jurisdiction.

Since this court has determined it lacks jurisdiction over the defendant, this court need not address his preliminary objection as to venue.

The court enters the following order.

ORDER

And now, July 28, 2005, after reviewing defendant’s preliminary objections to plaintiff’s complaint and the written arguments presented by plaintiff and defendant as to their respective positions regarding defendant’s preliminary objections, it is hereby ordered and decreed that defendant’s preliminary objection as to this court’s jurisdiction over defendant is sustained.

Plaintiff’s complaint filed in the Centre County Court of Common Pleas is accordingly dismissed.


author: ST. JOHN, J.,

text:
    Re/Max Select Realty v. DeAugustino

      W. Robert Ament, for plaintiffs.

      Edmund L. Olszewski, for defendants.
    August 17, 2005
   ST. JOHN, J.,

This matter is before the court on defendant’s (1) petition to strike a real estate broker’s notice of lien and (2) request for counsel fees and costs. The dispute involves a broker’s right to a lien for the nonpayment of a realtor’s commission after the sale of commercial property. Two questions of first impression are presented here. First, whether a real estate broker is entitled to a statutory lien for an unpaid commission arising out of the sale of commercial property subject to a written listing agreement where the sale was not the result of the broker’s services. Second, the degree of specificity required in a notice of lien describing the commercial property to be encumbered. The second issue will not be readied, however, because the court holds that real estate brokers are not entitled to a statutory lien for an unpaid commission unless the sale of the commercial property was the result of the broker’s services. Accordingly, the purported liens obtained here will be stricken.

I. BACKGROUND

Re/Max Select Realty and Paul F. Culley (plaintiffs) initiated the current action by filing a notice of lien intending to impose a broker’s lien on commercial real estate, commonly known as Rudy and Son’s Restaurant Inc. at 1641 Mercer-Grove City Road, Mercer, PA (property) formerly owned by Edward DeAugustino (defendant). On July 16, 2004, plaintiffs and defendant DeAugustino entered into a written agreement (listing agreement) whereby plaintiffs agreed to list defendant’s commercial property for sale in exchange for a 7 percent commission if the property was sold while the agreement was in effect, whether plaintiffs’ services obtained the buyer or not for the subject property. The listing agreement was signed on July 16,2004, and was for a one-year term.

Defendant found a buyer for the property, through no effort of plaintiffs. Plaintiffs learned of a pending sale and filed a notice of commercial real estate broker’s lien for $26,250 at the above term and number on May 27, 2005, pursuant to the Commercial Real Estate Broker’s Lien Act, 68 Pa.C.S. §1051 et seq. (Purdon’s 2004). Defendant sold the commercial restaurant property pursuant to a deed signed June 22,2005. Funds in the amount of the lien are still held in escrow by the closing agent because of the potential broker’s lien, pending the outcome of defendant’s petition.

The parties agree that the notice of lien did not state the correct legal description by metes and bounds for defendant’s commercial property. Instead the legal description in metes and bounds contained in paragraph 3 of the defendant’s notice of lien (as well as the amended notice of lien) is residential property which was previously deeded by Yolanda DeAugustino to Richard and Linda Craig on May 4, 2001, and was duly recorded in the Mercer County Recorder of Deeds Office at 2001 D.R. 07735, not the defendant’s commercial restaurant property. The property specifically described in the notice of lien is across the street from defendant’s commercial property, but the metes and bounds description was preceded in the notice by the following paragraph:

“The description of the commercial real estate that is subject to this notice of commercial broker’s lien, which is known as Rudy & Son’s Restaurant Inc., 1641 Mercer-Grove City Road, Mercer, PA 16137, is as follows Plaintiffs’ notice of lien ¶3. (emphasis added)

Thus, the issue is whether the property intended to be encumbered by a lien is the property specifically described by metes and bounds (which is residential property not owned by defendant DeAugustino), or the restaurant property which is identified by a street address only, or both parcels.

Defendant filed a petition to strike the commercial real estate broker’s lien and requested counsel fees and court costs. Defendant argues that (1) the Commercial Real Estate Broker’s Lien Act (CREBLA) does not give a commercial real estate broker an absolute right to obtain a lien on commercial real estate and did not entitle plaintiff to a lien in this case., aad (2) the improper legal description of the property on the notice of lien makes the lien ineffective against the subject commercial property. Plaintiff responds that it does have a lien that is enforceable against the restaurant property (and the money held in escrow) because paragraph 3 of its notice of broker’s lien refers specifically to the name of the restaurant and the correct street address of the restaurant. Plaintiff argues also that the fact that the legal description in the nature of metes and bounds with accompanying right of ways contained in the notice of lien is non-commercial property across the street from the restaurant is not a fatal defect. In the alternative, plaintiffs request that they be granted leave of court to file another amended notice of broker’s lien with the correct legal description of the commercial real estate which they believe would relate back to the original date that the first notice of broker’s lien was filed, May 27,2005. While the description contained in plaintiffs’ notice of lien clearly appears to be defective, that issue will not be reached for the reasons set forth below.

II. REAL ESTATE BROKER’S RIGHT TO A LIEN

CREBLA, which became effective May 20, 1998, is the applicable law to this situation because placing a lien on commercial real property was not an available remedy for an aggrieved real estate broker at common law. 7 P.L.E.2d Brokers §93 (2000). Disputes between real estate vendors and property owners were entirely contractual in nature at common law. Solis-Cohen v. Phoenix Mutual Life Insurance Co., 413 Pa. 633, 635, 198 A.2d 554, 555 (1964) (citing Seligsohn v. Young, 189 Pa. Super. 510, 512, 151 A.2d 792, 794 (1959)). This contractual remedy was the only right available regardless of whether the real estate broker actually sold the real property, or merely had an agreement for a guaranteed commission upon the sale of the real property, even if the broker did not actually facilitate the final sale. See Arthur v. Sylvester, 105 Pa. 233, 233 (1884).

The Pennsylvania General Assembly revamped the common law by creating “real estate broker liens in the amount of compensation rendered by the broker in connection with certain real estate transactions.” Statutory note following 68 Pa.C.S. §1051. The case sub judice requires the court first to determine whether a broker is entitled to a lien under CREBLA where the broker had a written listing agreement to sell the commercial property, but did not actually facilitate the sale of the commercial property. If the court finds that plaintiff had a right to a lien, it must then determine whether the broker here has perfected a lien under the statute where the notice of lien contains conflicting identification of the property to be encumbered. In either event, this is a case of first impression.

In order to attach a lien to any property, a right to that lien must exist. See Horn & Brannen Manufacturing Co. v. Steelman, 215 Pa. 187, 64 A. 409 (1906). Defendant argues that, as a prerequisite to filing the lien, plaintiffs must allege that their activities resulted in the procurement of a buyer pursuant to section 1053 of CREBLA. There are no published decisions interpreting section 1053. The Statutory Construction Act requires the court to rely upon the plain language of the statute itself to determine its meaning if possible. 1 Pa.C.S. §1903(a) (Purdon’s 2004); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa. Super. 497, 502, 464 A.2d 431, 434 (1983). CREBLA provides in pertinent part:

“Each broker . . . shall have a lien [in the amount of the agreed upon commission] upon commercial real estate ... listed with the broker under the terms of a written agreement for the purposes of selling... any interest in the commercial real estate that is signed by the owner . . . and as to which the broker . . . [has] provided licensed services that result during the term of the written agreement in the procurement of a person or entity that is ready, willing and able to purchase ... the commercial real estate or any interest in the commercial real estate upon terms that are provided in a written agreement that is signed by the owner ... or which are otherwise acceptable to the owner ... as evidenced by a written agreement that is signed by the owner. . . .” 68 Pa.C.S. §1053(1). (emphasis added)

CREBLA, therefore, grants a limited statutory right to a lien on commercial property to a real estate broker, provided that two general requirements, pertinent hereto, are met. First, that the broker and the real property owner have signed an agreement to list the subject real property for sale. Second, during the term of their listing agreement, the broker must “provide^ licensed services that result... in the procurement of a person or entity that is ready, willing, and able to purchase ... the commercial real estate . . ..” Id. (emphasis added) Stated in its simplest form, section 1053(1) requires that (1) the broker and the commercial real property owner have signed a listing agreement for the sale of commercial property, and (2) during the term of the listing agreement, the broker provides services which result in a buyer for the commercial real property. CREBLA, therefore, embodies a public policy of creating a broker’s lien only where the commission was earned by the broker.

Here, plaintiffs had a listing agreement with defendant, Edward BeAugustino, which is attached as exhibit “A” to the notice of lien. This agreement was in effect from July 16, 2004, and remained in effect for one year. A buyer was located by defendant DeAugustino for the commercial property while the listing agreement was in effect and it was actually sold prior to the listing agreement’s date of expiration. Defendant contends, and plaintiffs have conceded, that plaintiffs’ efforts did not result in the procurement of this buyer. Thus, the determinative factor here is that defendant BeAugustino procured the buyer for the restaurant property on his own. Since plaintiffs’ actions did not result in the procurement of a buyer, plaintiffs necessarily fail the second prong of the section 1053(1) test, and consequently have no right to a lien under CREBLA.

III. SUFFICIENCY OF NOTICE OF LIEN

In their petition to strike, defendant also argues that plaintiffs’ notice of lien was defective because the metes and bounds description of plaintiffs’ lien actually described the property across the street from defendant’s commercial restaurant property. Defendant further argues that plaintiffs are not allowed to amend their notice of lien to accurately describe the property. The listing agreement does not mention a restaurant by name or generic reference, nor does it identify the street address or deed reference number to the precise property to be sold. While the description in plaintiffs’ notice of lien refers in part to residential property for which CREBLA does not create a lien, the court need not reach the question of whether the mere reference to the name of the restaurant and a street address in the notice is an adequate description to create a lien on commercial property, because plaintiffs were never entitled to a lien under CREBLA in the first instance.

IV. ATTORNEY’S FEES AND COSTS

Both parties to this action have requested attorney fees and costs for the proceedings to this point; defendant in its petition to strike, and plaintiffs in their answer to defendants’ petition to strike. Under the “ ‘ American-rule’ ... parties to litigation are responsible for their own counsel fees ‘unless otherwise provided by statutory authority, agreement of the parties, or some other recognized exception.’” Mrozek v. Eiter, 805 A.2d 535, 538 (Pa. Super. 2002) (quoting Hart v. O’Malley, 781 A.2d 1211, 1216 (Pa. Super. 2001)). One such statutory exception provides “[t]he following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter... [a]ny participant in such circumstances as may be specified by statute heretofore or hereafter enacted.” 42 Pa.C.S. §2503(10); Merlino v. Delaware County, 556 Pa. 422, 425, 728 A.2d 949, 951 (1999). CREBLA contains a statutory provision which states “[t]he cost of proceedings, including reasonable attorney fees and prejudgment interest due to the prevailing party, shall be borne by the non-prevailing party or parties.” 68 Pa.C.S. §1058(h).

The determination of what exactly constitutes a “reasonable” attorney’s fee “is a matter to be decided through the sound discretion of a trial court, and an appellate court should not alter such a decision unless there has been a clear abuse of discretion.” Borough of Bradford Woods v. Platts, 799 A.2d 984, 991 (Pa. Commw. 2002) (citing In re LaRocca’s Trust Estate, 431 Pa. 542, 246 A.2d 337 (1968)). Pennsylvania’s appellate courts have not provided a test to determine exactly what amounts to an abuse of discretion, but “[t]he trial court’s judgment brings with it a presumption of correctness.” In re Condemnation by the Urban Redevelopment Authority of Pittsburgh, 70 Pa. Commw. 230, 239, 452 A.2d 1113, 1116-17 (1982) (citing In re Baughman’s Estate, 281 Pa. 23, 126 A. 58(1926)).

Plaintiffs here are clearly not entitled to a lien under CREBLA. Plaintiffs, therefore, must be considered the “non-prevailing party*” for the purposes of section 1058(h). See 68 Pa.C.S. § 1058(h). Accordingly, plaintiffs, as the non-prevailing party, are responsible for “[t]he cost of the proceedings, including reasonable attorney fees....” Id.

Defendant has submitted an invoice in the amount of $5,922.50 for costs and attorney fees in the proceedings for this action to this point. The invoice on its face seems excessive, especially since defendant’s attorney did not present any briefs or memorandum in support of his petition to strike the lien. This total includes a filing fee of $37.50, $10 in gas mileage, and23.5 hours ofwork billed at $250 an hour. However, there is no corresponding evidence attached to the petition to strike or presented elsewhere by defendant to substantiate this large number. Without evidence as to exactly what work was done, how long the work took, etc., the court is completely unable to determine whether the amount that defendant has presented is reasonable or not. The court, therefore, must deny defendant’s request for costs associated with this matter based upon the present record.

Hence this order:

ORDER

And now, August 17,2005, defendant DeAugustino’s petition to strike plaintiffs Re/Max Select Realty and Paul F. Culley’s commercial real estate broker’s lien filed at 2005-1686 is granted. Accordingly, it is hereby ordered that any and all liens obtained by plaintiff at the above term and number pursuant to the Commercial Real Estate Broker’s Lien Act are hereby stricken. Plaintiffs’ request for counsel fees and costs is denied since they were not the prevailing party. Defendant’s request for counsel fees and costs is also denied based upon the present record.

      . Section 1053(2) contains an additional provision conferring a right to lien under CREBLA, which is wholly independent of the requirements found in section 1053(1). However, this subsection deals solely with commercial real estate brokers who sign listing agreements with either buyers of commercial real estate or landlord and tenant situations. These sections are dearly outside the realm of this opinion, though notably, section 1053(2)’s treatment of buyers of commercial real estate is different than section 1053(l)’s. In section 1053(2), the right to a lien for the buyer or landlord’s broker is much broader than in section 1053(1). The broker is entitled to a lien under section 1053(2) at any point where the broker becomes entitled to compensation under the listing agreement.

      . Plaintiffs may still have cause of action for their unpaid commission for breach of contract pursuant to the listing agreement if it is an exclusive agency agreement, even though they are not entitled to a broker’s lien under CREBLA since the sale here was not the result of the broker’s services. 7 P.L.E.2d Brokers §77 (2000).

      . Defendant has merely stated on its invoice that defendant’s attorney performed 23.5 hours of work between May 27,2005 and July 11, 2005. These charges are not broken down by task and the time it took to complete the task or described in any detail for the court to review.


author: TERESHKO, J,

text:
    Dufner v. American College of Physicians

      Joseph McGinley, for appellants.

      Richard J. Sexton, for appellees.
    July 12, 2005
   TERESHKO, J,

I. PROCEDURAL HISTORY

Plaintiff appeals from the order of this court sustaining defendants’ preliminary objections and dismissing plaintiff’s complaint with prejudice dated November 3, 2004.

II. FACTUAL BACKGROUND

Alison Dufner (plaintiff) was a full-time employee for the American College of Physicians (ACP) as a communications coordinator and board of governor’s administrator. Plaintiff began working at ACP in September 1998, and she was terminated on October 30, 2003.

Plaintiff subsequently commenced this cause of action against ACP by filing a complaint on June 25,2004.

Plaintiff alleges that her dismissal was retaliation for reporting complaints about a hostile work environment created by her co-workers. (Complaint dated 7/16/04 pp. 1-3.) However, ACP contends that plaintiff was an at-will employee who was terminated from ACP for allegations of falsifying her time sheet, pursuant to ACP’s disciplinary policy. (Answers to preliminary objections dated 10/27/04, exhibit B.) Plaintiff states that she was wrongfully accused of falsifying the time sheets in October 2003, both “on paper and through the computer.” (Complaint dated 7/16/04, ¶29.)

In her complaint, plaintiff claims that she had an implied contract with ACP, and that ACP breached its contract by wrongfully terminating her employment. The complaint also includes counts for defamation, contractual bad faith and wrongful discharge in violation of public policy. (Complaint dated 7/16/04.)

III. LEGAL ARGUMENT

Breach of Contract — At-Will Employee

Counts I and II of the plaintiff’s complaint claim that plaintiff’s employment was terminated in violation of a contract ACP had with its employees. (Complaint pp. 5-6.) Plaintiff claims that this contract was breached when her employment was terminated approximately one year after she had made complaints about problems she was having with her co-workers and supervisor, and that her termination was in retaliation for utilizing certain “human resources protocols” when she made these complaints. (Complaint pp. 2-6.) Plaintiff has failed to identify a document which would qualify as a “contract” or a person who allegedly communicated this oral agreement to her.

Three elements are necessary to plead properly a cause of action for breach of contract: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Williams v. Nationwide Mutual Insurance Co., 750 A.2d 881, 884 (Pa. Super. 2000). In Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super. 2003), our Superior Court affirmed the trial court’s granting of preliminary objections to a breach of contract claim where plaintiff’s complaint did not indicate whether the alleged contract was written, did not attach a copy of any written contract, and did not explain why a written contract could not be obtained in accordance with Pa.R.C.P. 1019(i). Thus, in order to prove that a contract existed in a case, plaintiff must attach a copy of the contract to the complaint. The plaintiff failed to attach any contract to her complaint, nor has she made any effort to verify the claim that she has an employment contract with ACP resulting in a dismissal of plaintiff’s claim for breach of contract.

In addition, the law in Pennsylvania states that, where an at-will employee relationship exists, a person can be terminated for a good reason, bad reason, or no reason at all. Nix v. Temple University, 408 Pa. Super. 369, 375, 596 A.2d 1132, 1135 (1991). To overcome the presumption of at-will employment, the contract alleged by plaintiff must be clear and definite. If the language is ambiguous or there is no definite contractual agreement, the purported agreement will be strictly reviewed because of the persuasive presumption that employment is at-will. Id. at 376, 596 A.2d at 1135.

Accordingly, an employee bringing an action for wrongful termination bears the burden of overcoming the “firmly entrenched presumption” that she is an at-will employee who can be discharged for any reason or no reason at all. Rapagnani v. Judas Company, 736 A.2d 666, 669 (Pa. Super. 1999). Further, the sine qua non of the at-will employment presumption is that, except in rare circumstances, the discharge will not be reviewed in a judicial forum. Id. Therefore, to rebut the presumption of at-will employment, which plaintiff must do in this case, plaintiff must establish the following:

(A) An agreement for a definite duration;

(B) Agreement specifying that the employee will be . discharged for just cause only;

(C) Sufficient additional consideration; or

(D) Applicable recognized public policy exception.

In considering these elements, plaintiff has failed to prove any aspect of these which would overcome a presumption for at-will employment. Plaintiff has not provided any evidence that there was a definite duration of employment agreement between her and ACP. Plaintiff attempts to assert that a contractual relationship exists through policies outlined in an employee handbook. (Complaint, ¶49.) Under Pennsylvania law, however, it is clear that an employer is not bound by statements of policy in employee handbooks without a very clear expression of an intent to create a binding contractual obligation. Jacques v. Akzo International Salt Inc., 422 Pa. Super. 419, 430, 619 A.2d 748, 753 (1993). In addition, our courts have consistently held that an employee handbook, manual, or other communication “only forms the basis of an implied contract if the employee shows that the employer affirmatively intended that it do so.” Id. Specifically, “in order for a handbook to be construed as a contract, it ‘must contain unequivocal provisions that the employer intended to be bound by it, and, in fact denunciated the principle of at-will employment.’ ” Mudd v. Hoffman Homes for Youth Inc., 374 Pa. Super. 522, 529, 543 A.2d 1092, 1096 (1988), see also, Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 108, 466 A.2d 1084, 1085 (1983). According to Richardson, such inquiry must be made prior to any determination that there was a valid contract encompassing an offer, acceptance and consideration. 320 Pa. Super. at 108, 466 A.2d at 1085.

In Mudd, our Superior Court affirmed the lower court’s order sustaining preliminary objections of defendants, holding that appellant’s complaint did not state a cause of action for breach of contract because the personnel policies embodied in the appellee employer’s employee personnel handbook did not constitute an employment agreement between the parties. Id. at 523-24, 543 A.2d at 1092.

Plaintiff’s complaint is devoid of any allegations that there was an unequivocal expression of binding effect in accordance with principles set forth in Mudd and Richardson. Thus, plaintiff could not be considered an at-will employee of ACP.

Plaintiff’s complaint may also be interpreted to raise a claim for promissory estoppel based upon her purported reliance on the stated policy. However, that claim would also fail. The Supreme Court of Pennsylvania has held that an at-will employee does not have a claim for promissory or equitable estoppel because of his alleged reliance on an employer’s promise. Paul v. Lankenau Hospital, 524 Pa. 90, 95, 569 A.2d 346, 348-49 (1990). The continued viability of this rule is shown by the Supreme Court of Pennsylvania’s rejection of a recent attempt by an intermediate appellate court to carve out an exception to this rule. Niehaus v. Delaware Valley Medical Center, 429 Pa. Super. 119, 125, 631 A.2d 1314, 1317-18 (1993), rev’d, 538 Pa. 481, 649 A.2d 433 (1994).

Wrongful Discharge in Violation of Public Policy

In Count IV of plaintiff’s complaint, she asserts a claim of wrongful discharge in violation of public policy for what she deems retaliation for making complaints regarding a hostile work environment related to problems with her co-workers and supervisor. It is noteworthy that the plaintiff’s complaints were made to human resources in the summer of2002; however, plaintiff’s employment was not terminated until October 2003.

In Pennsylvania, it is well-settled that an at-will employee can maintain an action for wrongful discharge against the employer if the discharge is motivated by a specific intent to harm the employee, or the discharge violates a clear mandate of public policy. Geary v. United States Steel, 456 Pa. 171, 319 A.2d 174 (1974); Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306 (1986). “The exception in Geary is limited to those cases where the discharge is violative of a clear mandate of public policy.” Gillespie v. St. Joseph’s University, 355 Pa. Super. 362, 365, 513 A.2d 471, 472-73 (1986). (emphasis in original) To justify the public policy exception, an employee must point to clear public policy articulated in the Constitution, statutes, regulations, or judicial decisions of Pennsylvania, which are directly applicable to facts in the case. Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 474, 585 A.2d 1022, 1026 (1991). In Yetter, our Superior Court affirmed the trial court’s sustaining of defendant’s preliminary objections where allegations in the wrongful discharge count did not point to any statutorily or judicially recognized public policy which was violated by appellee in terminating appellant. In the absence of such allegations, appellee, an at-will employee, did not state a cause of action in wrongful discharge. Id. at 476, 585 A.2d at 1027.

In so holding the court stated,

“Instantly, appellant has failed to point to any statutorily or judicially recognized public policy which was violated by appellee in terminating appellant. In support of the count in wrongful discharge, the complaint alleges that appellee selectively enforced its company rules against appellant; that appellant’s supervisor . . . , personally disliked and was jealous of appellant, and appellee exaggerated or fabricated numerous incidences of job misconduct by appellant. While appellee’s alleged behavior may be reprehensible, the allegations simply do not rise to the level of significant and recognized public policy violations which would support a cognizable cause of action for wrongful discharge. None of the allegations ‘strike at the heart of the citizen’s social right, duties, and responsibilities. ’ Appellant has failed to state a cause of action for wrongful discharge.” Id. at 477, 585 A.2d at 1027.

Further, it is not sufficient that the employer’s action toward the employee is unfair. Davenport v. Reed, 785 A.2d 1058, 1063 (Pa. Commw. 2001). Furthermore, even if an important public policy is involved so as to invoke the public policy exception for plaintiff’s claim, an employer may still discharge an at-will employee if the employer has a separate, plausible and legitimate reason for the discharge. Id. at 1064.

Count VÍ of plaintiff’s complaint fails to identify any constitutional provision, statute regulation or judicial decision to bring her claim within the public policy exception. Instead, plaintiff relies on vague allegations of hostile work environment, and alleged retaliation against plaintiff for complaining of the working environment to ACP’s humaft resources department.

Numerous Pennsylvania courts who have analyzed the public policy exception to the at-will doctrine have emphasized that the narrow scope of this remedy only applies when the employment is at-will. Darlington v. General Electric, 350 Pa. Super. 183, 206, 504 A.2d 306, 318(1986). Assertions that an employer acted intentionally, wrongfully and without justification in discharging an at-will employee do not allow recovery where important and well-recognized facets of public policy are not at stake. Id. at 208-209, 504 A.2d at 319. Further, courts are reluctant to allow recovery based on novel theories of public policy. Id.

The Darlington court recounted the only reported decisions in Pennsylvania upholding a public policy claim. Employees have established the public policy exception to the employment at-will doctrine when employment was terminated for the following reasons:

(a) serving on jury duty;

(b) refusing to submit to polygraph tests in violation of Pennsylvania statute;

(c) reporting motor vehicle violations;

(d) refusing to violate antitrust laws; and

(e) refusing to participate in political lobbying efforts. Id. at 209-10, 504 A.2d at 319.

Other cases have also defined the public policy exception as a narrow one. In Gillespie, St. Joseph’s University fired an employee based on accusations of criminal conduct made by two co-workers. 355 Pa. Super. at 365, 513 A.2d at 472-73. While no criminal charges were formally brought against the employee, his employment was terminated by St. Joseph’s. Id. In his complaint, he claimed that it was against public policy to terminate a person’s employment based on unsubstantiated allegations of criminal conduct. The trial court sustained St. Joseph’s preliminary objections and our Superior Court affirmed. Id.

Indeed, Pennsylvania courts have even ruled that private sector employees discharged in retaliation for whistle blowing do not have a cause of action for retaliatory discharge, because Pennsylvania’s whistle blower statute applies only to public employees. Holewinski v. Children’s Hospital of Pittsburgh, 437 Pa. Super. 174, 649 A.2d 712 (1994).

Although plaintiff alleges that she was subject to a “hostile work environment,” she fails to allege that she was subject to any unlawful discrimination, or that the hostility was a violation of constitutional, statutory, or regulatory acts. Nor did she contend that such conduct fell within the narrow listed exceptions listed in Darlington, which would enable her to make a legitimate public policy claim for wrongful discharge.

Contractual Bad Faith Claim

Count III of plaintiff’s complaint asserts a breach of defendant’s duty of good faith and fair dealing. Specifically, plaintiff states that the facts supporting her claims for breach of contract and public policy wrongful discharge also support a claim of contractual bad faith. As a matter of law, an action for breach of the implied duty of good faith and fair dealing cannot be maintained, insofar as the underlying claim is for termination of an at-will employment relationship. Donahue v. Federal Express Corp., 753 A.2d 238 (Pa. Super. 2000). Although the duty of good faith and fair dealing exists in an at-will employment contract, there is no bad faith when m employer discharges an at-will employee for good reason, bad reason, or no reason at all, as long as no statute or public policy is implicated. Id. In Donahue, our Superior Court affirmed the trial court’s sustaining of defendant’s preliminary objections and where appellant could not, as a matter of law, maintain an action for breach of the implied duty of good faith and fair dealing, where the underlying claim was for termination of art at-will employment relationship. Id.

Defamation

Plaintiff also asserts claims for defamation, specifically ACP accusations of her falsifying her time sheet. The only information plaintiff provides in her complaint identifying the specific act of either libel or slander is paragraph 29 where she states, “In October 2003, Ms. Dufner was accused by Ms. Heller of falsifying a time sheet, both on paper and through computer.”

“A publication is defamatory if it tends to harass the reputation of another so as to lower him or her in the estimation of the community or if it tends to deter third persons from associating or dealing with him or her.” Sobel v. Wingard, 366 Pa. Super. 482, 485-86, 531 A.2d 520, 522 (1987) (citing Corabi v. Curtis Publishing Co., 411 Pa. 432, 273 A.2d 899 (1971)).

There are two kinds of defamation. One type is slander, which occurs when words which are spoken are defamatory. Id. (citing Solasko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1956)). Although plaintiff pleads a count for slander in her complaint, she fails to cite to any incident in her complaint where information about her falsifying time sheets was communicated to a third person verbally. Thus, she fails to adequately state a claim for slander under the law.

The second kind of defamation is libel. Libel is maliciously written or printed material which tends to blacken a person’s reputation or to expose the person to public hatred, contempt, or ridicule or injure the person in his or her business or profession. Id. Plaintiff also pleads a count for libel in her complaint, however this claim must fail for several reasons.

In order for defamation to occur for either a libel or slander claim, the defamatory statement must be “published,” that is, communicated to a third person. Id. The assertion that the falsification of plaintiff’s time sheet was made “on paper and through computer,” indicates a written communication that would constitute a libel claim.

In an action for defamation, plaintiff has the burden of proving the following:

(a) The defamatory character of the communication;

(b) Its publication by the defendant;

(c) Its application to the plaintiff;

(d) The understanding by the recipient of its defamatory meaning;

(e) The understanding by the recipient of the communication as intended to be applied to the plaintiff;

(f) Special harm resulting to the plaintiff from its publication; and

(g) Abuse of a conditionally privileged communication. Sobel, 366 Pa. Super. at 486, 531 A.2d at 522.

Plaintiff’s complaint fails to explain: (1) how the allegedly defamatory Communications were published; (2) to whom it was published; and (3) the absence of any privilege applicable to defendant.

Any defamatory communication must be expressed to a third party to result in publication. Elia v. Erie Insurance Exchange, 430 Pa. Super. 384, 391, 634 A.2d 657, 660 (1993).

“In addition, liability for publication of a defamatory matter may be defeated by a privilege to publish it.” Sobel, 366 Pa. Super. at 487, 531 A.2d at 523 (citing Agriss v. Roadway Express Inc., 334 Pa. Super. 295, 483 A.2d 456 (1984)). “An employer has an absolute privilege to publish defamatory matters in notices of employee terminations.” Id. “This absolute privilege was extended in Agriss to include publications of defamatory material in warning letters. Moreover, evaluations of an employee by an employer are deemed to be consented to by the employee.” Id. (citing Baker v. Lafayette College, 350 Pa. Super. 68, 504 A.2d 247 (1986)).

The instant publication is solely related to plaintiff’s employment and his work performance. In Keddie v. Pennsylvania State University, 412 F. Supp. 1264 (M.D. Pa. 1976), as in Wendler v. DePaul, and Baker, the court held that an employer’s evaluative statements of an employee which were critical of the employee’s job performance were not defamatory. Sobel, 366 Pa. Super. at 487, 531 A.2d at 523. In Sobel, our Superior Court upheld the trial court’s order granting defendant’s demurrer to the libel action. The court in Sobel found that an evaluation statement, read in the context of an employment-related report, is not capable of defamatory meaning. Thus, according to the case law, assuming that the appellate court finds that the information regarding plaintiff’s employment status was defamatory, it is privileged information as an employee evaluation and is not actionable.

In addition, plaintiff fails to state specifically to whom the information was published and how it was published. A necessary element of a defamation action is publication or communication to a third party. Suppan v. Kratzer, 660 A.2d 226, 229 (Pa. Commw. 1995). A defamatory action must generally allege: (1) the defamatory character of the communication, (2) publication of the communication to a third party, (3) that the communication refers to the plaintiff, (4) the third party’s understanding of the communication’s defamatory character, and (5) injury. Id. at 229 n.3 (citing Petula v. Mellody, 138 Pa. Commw. 411, 588 A.2d 103 (1991)).

The court in Suppan stated that if plaintiff “does not allege to whom the allegedly defamatory statement was published, he has not properly alleged defamation.” Suppan, supra at 229 (citing Raneri v. DePolo, 65 Pa. Commw. 183, 441 A.2d 1373 (1982)). An allegation which merely avers that the alleged defamatory statement was published to a third person is defective. Id.

In Raneri v. DePolo, 65 Pa. Commw. 183, 186, 441 A.2d 1373, 1374 (1982), the first count of plaintiff’s complaint merely stated that the alleged defamatory material was published “to third persons.” The appellate court sustained defendant’s demurrer because plaintiff failed to state a cause of action in his complaint. Id. The court noted that appellant’s defamation allegation failed to specify an identified third person to whom respondents published libelous material (citing Gross v. United Engineers and Constructors Inc., 224 Pa. Super. 233, 235, 302 A.2d 370, 371 (1973)). It is axiomatic that, since the plaintiff’s reputation that is protected is the esteem in which others hold him, publication to an identified third person is an essential element of actionable defamation. Id.

Furthermore, a cause of action in libel is not adequately pleaded by merely alleging, without any supporting facts or exhibits, that a publication is scandalous, malicious, defamatory and libelous. Baird v. Dun & Bradstreet, 446 Pa. 266, 272, 285 A.2d 166, 170 (1971). In Baird, our Supreme Court found that materials which allegedly have defamatory meaning, but lack proof of publication, must be excluded from consideration of whether these words were defamatory. Id.

In her complaint, plaintiff makes no mention of who the information was published to, nor does she state specifically how it was published. Thus, in addition to any communication by ACP being privileged, it also fails to specifically state how and by whom it was published.

Amendment of Complaint

Lastly, appellant contends that she was not allowed to amend her complaint after it was dismissed. However, appellate courts have denied requests for leave to amend a complaint where the appellant failed to seek leave to amend from the court below at any time during litigation. Raneri, supra at 188, 441 A.2d at 1376. In Raneri, the court stated that, since this issue of leave to amend was not raised below, it will not be considered on appeal. See also, Di Santi v. Russ Financial Co., 251 Pa. Super. 184, 380 A.2d 439 (1977). Appellant never attempted to obtain leave of court prior to filing her notice of appeal from the court’s granting of summary judgment; thus, under Raneri, her right to amend by leave of court is lost.

IV. CONCLUSION

In consideration of the analysis set forth above, this court believes that the defendant’s motion for summary judgment was properly granted and respectfully requests that its decision be affirmed by the court above.

      . 346 Pa. Super. 479, 499 A.2d 1101 (1985).