author: NEALON, J.,

text:
    Murphy v. Frie

      Alan Brian Jones, for plaintiffs

      John J. Brier, for defendant Christopher J. Frie

      Paul G. Lees, for defendant Taylor Primitive Methodist Church
    August 15, 2013
   NEALON, J.,

NON-JURY VERDICT PURSUANT TO PA.R.C.P. 1038

On August 18, 2011, plaintiffs, Dennis J. Murphy and Mary A. Murphy (“the Murphys”), filed this ejectment and trespass action against their neighbors, defendant, Christopher J. Frie (“Frie”), and defendant, Taylor Primitive Methodist Church (“the Church”), seeking to compel Frie and the Church to remove alleged encroachments upon the Murphys’ property and to pay damages to the Murphys for alleged trespass upon their property. After a certificate of readiness was filed on February 25,2013, the court administrator assigned this non-jury matter to the undersigned and scheduled a status conference on March 28, 2013. At the conclusion of that conference, an order was issued scheduling this matter for a non-jury trial on August 6,2013. On that date, testimony was received from a professional surveyor, George J. Dunda; the Murphys introduced seven exhibits into evidence; and Frie and the Church offered eight joint exhibits into evidence. The findings of fact set forth below are based upon the competent, credible and relevant evidence submitted during the non-jury-trial.

I. FINDINGS OF FACT

1. The Murphys are the owners of property located at 1003 Oak Street, Taylor, Pennsylvania. The Murphys’ chain of title for their Oak Street property is as follows: deed dated September 26, 2008, from Charles McAndrew and Florence D. McAndrew to Dennis J. Murphy and Mary A. Murphy; deed dated May 9, 2007, from Wachovia Bank, N.A. to Florence D. McAndrew and Charles McAndrew; sheriff’s deed dated April 17, 2007, from Sheriff John Szymanski to Wachovia Bank, N.A., pursuant to a sheriff’s sale conducted on February 6, 2007, upon a writ of execution issued in Wachovia Bank, N.A. v. Helen J. LaCapra and Alan M. LaCapra, No. 06 CV 2557 (Lacka. Co.); deed dated June 20, 1997, from Ann Madura to Helen J. LaCapra and Alan M. LaCapra; deed dated August 6, 1973, from Roger L. Perwein and Ann L. Perwein to Ann Madura; deed dated October 16, 1964, from Charles Bichler and Leona Bichler to Roger L. Perwein and Ann L. Perwein; deed dated August 5, 1963, from Parmoff Corporation and Moffat Coal Company, Inc. to Charles Bichler and Leona Bichler. (Plaintiffs’ exhibits nos. 1-7).

2. The dimensions and boundaries of the Murphys’ property are set forth in their deed dated September 26, 2008, as follows:

ALL that certain lot, piece, parcel or tract of land situate, lying and being in the Sixth Ward of the Borough of Taylor, County of Lackawanna, and State of Pennsylvania, bounded and described as follows, to wit:
BEING all of Lot No. 1 on Bichler’s plot of Lots No. 2, further described as follows:
BEGINNING at a comer in the Southerly side line of Oak Street extended, said comer being the most Northerly comer of the Taylor Primitive Methodist Church land;
THENCE along the Westerly side line of the said Taylor Primitive Methodist Church lands parallel to the Westerly right-of-way line of State Highway Route 35049 (known or called Key ser Avenue, formerly called Back Road) in the Southwesterly direction One hundred (100) feet to a comer;
THENCE along the Southerly side line of said Taylor Primitive Methodist Church lands in a Southeasterly direction on a radial line to a 00 degrees 45 minutes curve to the left eight (08); set to a comer; said comer being the most Northerly comer of a parcel of surface conveyed by Moffat and Company to Joseph Novotka by Deed dated September 8, I960, recorded in Lackawanna County Deed Book 577, page 377;
THENCE along the Westerly side line of the parcel of surface conveyed to Joseph Novotka Twenty (20) feet to a point, a common boundary of Lots 1 and 2;
THENCE in a Northwesterly direction One Hundred Twelve (112) feet to a point on a proposed street;
THENCE along said proposed street in a Northeasterly direction Ninety-four (94) feet more or less to Oak Street extended;
THENCE along Oak Street extended in a Southeasterly direction One Hundred (100) feet more or less to the place of beginning.
SUBJECT to the same exceptions and reservations contained in the deeds in the line of title.
BEING the same premises conveyed by WACHOVIA bank, N.A., to the Grantors herein, by Deed dated May 9, 2007 and recorded in the Recorder of Deeds Office in and for Lackawanna County, Instrument Number 200717715.
Tax Map No. 15514-040-017

(Plaintiffs’ exhibit no. 1).

3. The Church is the owner of property at 153 South Keyser Avenue, Taylor, Pennsylvania, by virtue of two conveyances of land to the Church by the Delaware, Lackawanna and Western Railroad Company and the Moffat Coal Company, Inc. Specifically, by deed dated June 12, 1884, the Delaware, Lackawanna and Western Railroad Company conveyed a parcel of land situated at the intersection of Oak Street and State Route 35049, which was then known as Back Road and is currently known as Keyser Avenue. (Defendants’ exhibit nos. 1, 6). In addition, the Church acquired the adjacent property on Keyser Ave via a deed dated September 8, 1960, from Robert Y. Moffat, Grace Moffat Compton, Robert Y. Moffat, Jr., Moffat & Company, and Moffat Coal Company, Inc. to the Church. (Defendants’ exhibits nos. 2, 6).

4. The legal description of the property that was conveyed to the Church by the Delaware, Lackawanna and Western Railroad Company on June 12, 1884, is as follows:

A lot or piece of land situate in Lackawanna Township, in Lackawanna (late Luzerne) County, State of Pennsylvania, described as follows: Beginning at the most easterly comer on the West side of the Back Road between “Archbald” and “Pyne” shafts and the Lane leading to the Mountain; thence along the Westerly side of said Back Road South, sixty three and three quarters (63-3/4) degrees West, seventy two and three tenths (72-3/10) feet to a comer; thence North, twenty six and one quarter (26-1/4) degrees West, One hundred and fifty (150) feet to a comer; thence North, sixty three and three quarters (63-3/4) degrees East, twenty seven and seven tenths (27-7/10) feet to the west side of the lane to the mountain; thence along the West side of said lane South, Forty two and three quarters (42-3/4) degrees East, One hundred and fifty six and forty nine one hundredths (156-49/100) feet to the place of beginning. Containing seven thousand five hundred (7500) square feet of land, be the same more or less.

(Defendants’ exhibitno. 1). The dimensions and boundaries of the property that was conveyed to the Church by Moffat Coal Company, Inc., on September 8,1960, are as follows:

That certain lot, piece, parcel or tract of land, situate, lying and being in the 6th Ward, Borough of Taylor, County of Lackawanna, and State of Pennsylvania, bounded and described as follows, to wit:

Beginning at a comer in the westerly right of way line of State Highway Route 35049 (known or called Key ser Avenue, formerly called Back Road), said comer being distant 72.30 feet on a course South 63 degrees 45 minutes West as measured along said Westerly right of way line of State Highway Route 35049 from the southerly side line of Oak Street projected (formerly called Lane to West Mountain), said comer also being the southerly side line projected of a parcel of surface conveyed by the Delaware, Lackawanna and Western Railroad Company to the Primitive Methodist Church of the United States by deed dated June 12, 1884, recorded in Lackawanna County Deed Book 197, page 160, thence
(1) along the aforesaid westerly right of way line of State Highway Route 35049 on a 0 degree 45 minutes curve to the left in a southwesterly direction, an arc distance of 75 feet to a comer, thence (2) across lands of Moffat and Company by the following courses and distances:
On a radial line of the aforesaid 0 degree 45 minutes curve to the left in a northwesterly direction about 158 feet to a comer, thence parallel to the aforesaid westerly right of way line of State Highway Route 35049 in a northeasterly direction along a curve to the right, an arc distance of about 75 feet to a comer, said comer being the most northwesterly comer of the aforesaid parcel of surface conveyed by the D.L. & W. Railroad Company to the Primitive Methodist Church, thence
(3) along the aforesaid southerly side line of the parcel of surface conveyed by the D.L. & W Railroad Company to the Primitive Methodist Church in a southeasterly direction about 158 feet to a comer, the place of beginning.
Containing 0.27 acres, be the same more or less.

(Defendants’ exhibit no. 2)

5. Frie is the owner of property located at 149 South Keyser Avenue, Taylor, Pennsylvania, which is located adjacent to the Church’s property at 153 South Keyser Avenue. (Defendants’ exhibit no. 6). As per the deed dated June 26, 2006, from Ruth Salidis to Christopher J. Frie, the legal description of the property that was conveyed to Frie is as follows:

All the surface or right of soil of that certain lot, piece or parcel of land situate in the Sixth Ward of the Borough of Taylor, County of Lackawanna and State of Pennsylvania, bounded and described as follows: Beginning at a point in the westerly right-of-way line of State Highway Route 35049 known as Keyser Avenue and formerly called Back Road, distance one hundred forty-seven and thirty-one hundredths (147.31) feet southwesterly from the intersection of the southerly side of Oak Street projected and the westerly right-of-way of said State highway Route #35049, being a comer of lands of the Taylor Primitive Methodist Church;
Thence, in a westerly direction along the right-of-way line of State Highway Route #3 5049 on a 0° 45 ’ curve to the left an arc distance of seventy (70) feet to a comer;
Thence, in a northwesterly direction on a radial line of said 0° 45’ to the left a distance of one hundred fifty (150) feet to a comer;
Thence, in a northeasterly direction parallel with the aforesaid westerly right-of-way line of said Highway Route #35049 on a curve to the right a distance of seventy (70) feet or thereabouts to a comer on the aforesaid lands of the Taylor Primitive Methodist Church, and
Thence, in a southeasterly direction along line of said lands of the Taylor Primitive Methodist Church, being along a radial line of said 0° 45’ curve a distance of one hundred fifty (150) feet to the place of beginning.

(Defendants’ exhibit no. 3).

6. The Murphys’ property is located at the intersection of Oak Street and Mackie Lane, Taylor, and the rear or southern edge of the Murphys’ property abuts the rear or northern edges of the properties owned by the Church and Frie. (Defendants’ exhibit no. 6).

7. At the time that the Church’s property at the comer of Oak Street and Keyser Avenue was conveyed to the Church by the Delaware, Lackawanna and Western Railroad Company on June 12, 1884, Keyser Avenue was known as Back Road. (Defendants’ exhibit No. 1). In 1938, the Commonwealth of Pennsylvania, Department of Highways reconfigured State Highway 35049 (Keyser Avenue/Back Road) to straighten that roadway and reduce its curvature in the vicinity of the Church’s property. (Defendants’ exhibit no. 7-8). As a result of that alteration of the roadway, the macadam roadway constituting Keyser Avenue was moved slightly in a southeasterly direction such that the original northern edge of the former Back Road now serves as an unpaved shoulder or berm of Keyser Avenue directly in front of the Church’s property. (Defendants’ exhibit no. 6).

8. The 1938 reconstruction of State Highway Route 35049, which adjusted the Keyser Avenue roadway in a southeasterly direction for a distance scaling ten to twenty five feet along the properties located in the 100 block of South Keyser Avenue, did not change or relocate the northern property lines of the Church or Frie.

9. Although the Murphys instituted this action and alleged that the Church and Frie have encroached upon their property by placing a flower garden, trampoline, horseshoe pits and shrubbery on the Murphys’ land, the Murphys have never produced a survey supporting their claims with respect to the claimed boundaries of their property. It appears from the record that the Murphys erroneously measured the dimensions of the property that is owned by the Church and Frie by utilizing the current edge of the Keyser Avenue roadway rather than the original points of reference based upon the location of the former Back Road.

10. The survey performed by George J. Dunda, which is based upon visible iron pins that are situated on the Murphys’ property and the lands of their neighbors, is accepted as competent and credible. (Defendants’ exhibit no. 6).

11. The correct dimensions of the Murphys’ property, which was formerly Lot No. 1 on Bichler’s plot of Lots No. 2, begin on the southerly sideline of Oak Street, extend along the westerly sideline of the Church’s land in a southwesterly direction for 102.70 feet, then along the southerly sideline of the Church’s land in a southeasterly direction for eight feet, then along the westerly sideline of Frie’s land for twenty feet, then in a northwesterly direction for one hundred and twelve feet towards Mackie Lane, then along that lane in a southeasterly direction for 98.67 feet towards Oak Street, and then along Oak Street in a southeasterly direction for 107.05 feet to an existing iron pin. (Defendants’ exhibit no. 6).

12. The Dunda survey establishes that, with the exception of a fifty six (56) square foot triangular portion of the Church’s flower garden, the Murphys’ encroachment claims are unfounded and without any basis in law or fact. (Id).

II. DISCUSSION.

“An action in ejectment can be a proper remedy for the recovery of land unlawfully encroached upon.” Big Bass Community Association v. Warren, 950 A.2d 1137, 1146 n. 12 (Pa. Cmwlth. 2008). Plaintiffs in an ejectment action bear the burden of proving, by a preponderance of the evidence, their right to immediate exclusive possession of the property, and such “[r] eco very can be had only on the strength of their own title, not the weakness of defendant’s title.” Riverwatch Condominium Owners Association v. Restoration Development Corporation, 980 A.2d 674, 681-682 (Pa. Cmwlth. 2009), app. denied, 603 Pa. 711, 985 A.2d 220 (2009); Haan v. Wells, 2013 WL 3119996, at *3 (Lacka. Co. 2013). “Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.” Wells Fargo Bank v. Long, 934 A.2d 76, 78 (Pa. Super. 2007); Durdach v. Revta, 2011 WL 7272290, at *3 (Lacka. Co. 2011), aff’d, 64 A.3d 268 (Pa. Super. 2013). To sustain an action in ejectment, “the evidence must be sufficient to identify the land in dispute and establish the plaintiff’s right to possession thereof,” and “[t]he burden of identifying and locating the land clearly rests upon the plaintiff.” Borough of Ulysses v. Messler, 986 A.2d 224, 227 (Pa. Cmwlth. 2009).

The Murphys failed to produce any survey evidence in support of the significant encroachments that they have alleged in their complaint. As noted above, the nominal area of encroachment consists of a small triangular patch of a flower garden that measures 14 ft. x 8 ft. x 16 ft. for a total area of fifty-six square feet. The Murphys have not demonstrated their right to possession of any other land that is occupied by the Church or Frie. Consequently, the Murphys’ request for ejectment relief will be granted only with respect to the aforementioned triangular, fifty-six square ft. patch of land.

The Murphys also seek damages from the Church and Fríe as a result of the Church’s erection of a trampoline and two horseshoe pits which the Murphys allege are positioned on their property. (Docket entry no. 1 at ¶¶32-35). One who intentionally enters the property of another without the privilege to do so is chargeable with trespass. Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 450,91 A.2d232, 235 (1952); Woodham v. Dubas, 256 Fed. Appx. 571, 576 (3d Cir. 2007). Pennsylvania has adopted the Restatement (Second) of Torts §158 which imposes liability for trespass if the intruder enters or remains on the land of another without consent. Rawlings v. Bucks County Water Sewer Authority, 702 A.2d 583, 586 (Pa. Cmwlth. 1997). It is immaterial whether the trespass is committed willfully and with the intent to invade another’s interest, and a defendant is liable for trespass which is the product of an innocent mistake based upon the trespasser’s honest or reasonable belief that the property in question is his/ her own. Kopka, supra. To succeed with a trespass claim, “there must be in the plaintiff either actual possession or the right to immediate possession flowing from the right of property; and [s]he must have been deprived of it by the tortious act of another.” Florig v. Estate of O’Hara, 912 A.2d 318, 327 n.13 (Pa. Super. 2006), app. denied, 593 Pa. 740, 929 A.2d 1162 (2007).

The credible survey evidence established that the horseshoe pits and the trampoline are not located on the Murphys’ property. Except for the triangular, fifty-six square foot piece of land identified above, there has been no encroachment by the Church or Frie on the Murphys’ property. Moreover, the Murphys have not presented any evidence of harm or damages that they allegedly suffered as a result of that nominal encroachment. As a result, a verdict will be entered in favor of the Church and Frie and against the Murphys with respect to the Murphys’ trespass claims.

And now, this 15th day of August, 2013, upon consideration of the competent, relevant and credible evidence introduced during the non-jury trial on August 6, 2013, and based upon the factual findings and legal discussions set forth above, it is hereby ordered and decreed that:

1. With regard to plaintiffs’ action in ejectment, a verdict is entered in favor of plaintiffs, Dennis J. Murphy and Mary A. Murphy, and against defendants, Christopher J. Frie and Taylor Primitive Methodist Church, only with respect to the triangular, fifty-six (56) square foot piece of land that is identified on the professional land suryey of George J. Dunda, (Defendants’ exhibit no. 6), and which was measured by Mr. Dunda during his testimony on August 6, 2013. In all other respects, a verdict is entered in favor of defendants, Christopher J. Frie and Taylor Primitive Methodist Church, and against plaintiffs, Dennis J. Murphy and Maiy A. Murphy, relative to the action in ejectment; and
2. A verdict is entered in favor of defendants, Christopher J. Fríe and Taylor Primitive Methodist Church, and against plaintiffs, Dennis J. Murphy and Mary A. Muiphy, with regard to plaintiffs’ trespass claims.


source: Caselaw Access Project

author: MOTTO, P.J.,

license: Public Domain

text:
    East Coast Paving & Sealcoating, Inc. v Emery

      Louis M. Perrotta and Joseph P DiCicco, for plaintiff.

      Norman J. Barilla, for defendants.
    August 22, 2013
   MOTTO, P.J.,

Before the court for disposition are the preliminaiy objections of the defendants, Michael and Paula Emery, to plaintiff’s complaint. The complaint consists of three counts. Count 1 seeks recovery for misappropriation of trade secrets. Counts 2 and 3 seek recovery for intentional interference with contractual relations. Count 2 relates to defendants’ alleged interference with an employment contract between plaintiff and a one Charles R. Parks which prohibited Parks from competing with plaintiff upon termination of his employment and from disclosing trade secrets. Count 3 relates to defendants’ alleged interference with existing customers and prospective customers of plaintiff by inducing those customers to do business with defendants instead of plaintiff.

Defendants’ preliminary objections contend that plaintiff has failed to state a cause of action as to each count and further contends that the complaint fails to conform to law and rule of court because of a lack of specificity in violation of Pa.R.C.P. 1019(a) and (f).

The facts hereinafter set forth are alleged in plaintiff’s complaint.

Plaintiff is engaged in the business of paving and sealcoating. Charles R. Parks was employed by plaintiff from October, 2006 to September, 2009 as an “at will” employee. In consideration for his employment with plaintiff, Parks signed an employee non-compete agreement as part of plaintiff’s “Employee Guidelines Company Policy.” The agreement restricted Parks from owning, managing, operating, consulting with or being employed by a business substantially similar to, or competitive with, plaintiff’s business and from disclosing or using on his own behalf trade secrets, customer information, confidential data gained through employment, or otherwise utilizing the good will of plaintiff. The restriction applied to business within one hundred miles of the location of plaintiff’s place of business for a period of one and one-half years from the date of termination of Park’s employment with plaintiff.

Parks performed paving and sealcoating work for plaintiff in the course of his employment and was provided access to customer information and confidential business information. Parks was advised that customer information was considered a trade secret. Parks, as well as other employees, was provided with customer information on a need-to-know basis.

At some point during his employment with plaintiff, Parks prepared to start a new business called “Emery’s Sealcoating” with family members, including the defendants Michael and Paula Emery. The defendants had knowledge of Parks’ agreement with plaintiff and Parks’ duty of secrecy regarding customer lists and information, but encouraged Parks to steal information from plaintiff’s client list for the purpose of soliciting business for Emery’s Sealcoating.

While Parks was employed by plaintiff he did steal information regarding plaintiff’s customers that Parks and defendants intended to use to benefit the business of Emery’s Sealcoating.

After Parks termination of employment with plaintiff in September of 2009, Parks began business operations with Emery’s Sealcoating. Defendants assisted Parks in establishing Emery’s sealcoating and acquiring business by contacting and soliciting business from customers Parks became aware of through his employment with plaintiff. The business of Emery’s Sealcoating was substantially similar to the work performed by plaintiff. Parks thereafter died and the defendants herein continue to do business as Emery’s sealcoating in competition with plaintiff utilizing plaintiff’s customer information which parks improperly obtained from plaintiff.

Plaintiff contends that the customer information stolen by Parks and used by defendants constitutes a trade secret within the meaning of 12 Pa.C.S. §5302 of the Pennsylvania Uniform Trade Secrets Act and that in violation of the act, defendants misappropriated the said trade secrets by utilizing improper means to obtain the customer information.

Plaintiff further contends that defendants have engaged in intentional interference with the contractual relations that existed between plaintiff and Parks by encouraging Parks to violate the employment agreement by misappropriating customer information with specific intent to harm plaintiff; by disrupting existing contractual relations or preventing further contractual relations with the said customers from being formed; and by entering into a business in competition with Plaintiff in violation of the non-compete agreement.

Plaintiff further alleges that the defendants, in combination with Parks, have engaged in intentional interference with contractual relations that existed between plaintiff and its customers and also interfered with prospective contractual relations with third party customers that were solicited by Parks. In so doing, defendants and Parks specifically intended to harm plaintiff’s contractual relations with customers and to prevent prospective relations from occurring when they solicited the business of such customers with the intent to acquire their business for their business operations under Emery’s Sealcoating.

Preliminary Objection in the Nature of a Motion to Dismiss Count 1 — Failure to State a Cause of Action for Misappropriation of Trade Secrets

Defendants contend that plaintiff has failed to plead a cause of action for misappropriation of trade secrets against defendants Emery with particularity and have failed to provide the material facts upon which the claim against defendants is based. The preliminary objection recites that plaintiff has failed to plead that either defendant, Michael Emery or Paula Emery, entered into any agreement with Parks to perform the alleged unlawful act of stealing trade secrets, or otherwise consented thereto, and that plaintiff has failed to plead facts that support the contention that the defendants acted with an evil motive.

In their brief, defendants argue that plaintiff has alleged insufficient facts to qualify any customer list as a trade secret or to otherwise demonstrate that any client information is entitled to trade secret protection and has failed to provide in the complaint factual background to support the contention that the defendants learned about the customer information from parks, with notice that the customer information was a secret and that Parks discovered the information by improper means. Defendants argue that plaintiff has not stated facts to support the assertion that defendants were on notice of the secrecy of the customer information.

A cause of action for misappropriation of a trade secret is governed by the Pennsylvania Uniform Trade Secrets Act (“PUTSA”), 12 Pa.C.S.A. §5301 et seq. PUTSA defines a “trade secret” as follows:

Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:
(1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use;
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

12 Pa.C.S.A. §5302.

A compilation of a company’s clientele or a compilation constituting a list of customers is an asset or value acquired by virtue of efforts and expenditures over a period of time and should be protected as a form of property. John G. Bryant Co., Inc. v. Sling Testing and Repair, Inc., 369 A.2d 1164 (Pa. 1977); A.M. Skier Agency. Inc. v. Gold, 747 A.2d 936 (Pa. Super. 2000). Although the identity of customers may be found through public sources such as a telephone book, it is the compilation of thousands of customer names with contact information, customer preferences and peculiarized information relative to each customer that would be valuable to competitors and must be protected, as no public source could be the equivalent of such a compilation. Thus, a compilation of customer data that is not readily available from other sources will qualify as a trade secret. See Spring steels. Inc. v. Molloy, 400 Pa. 354, 162 A.2d 370 (1960).

Here, the complaint alleges that Parks, who had access to the confidential information, was prohibited from disclosing or using on his own behalf customer information gained through employment and that he was provided access to customer information through his employment to the extent that such access was necessary for plaintiff’s legitimate business operation. Further, it is alleged that Parks was advised that the customer information was considered a trade secret and that Parks, as well as other employees, was provided with customer information on a “need to know basis”, and that Parks did “steal” information regarding plaintiff’s customers that Parks and the defendants intended to use to benefit Emery’s Sealcoating. Thus, it may be inferred from the allegations of the complaint that plaintiff maintained a customer list which derived independent economic value from not being readily ascertainable by proper means and that plaintiff utilized efforts that were reasonable under the circumstances to maintain the secrecy of the information and that Parks and the defendants conspired to steal this confidential information.

Defendants argue that the plaintiff has failed to allege the factual background to support the allegations above referred to; that since plaintiff failed to provide specific information pertaining to the contents of the client list, the court is unable to perform the necessary fact intensive analysis required to determine whether a customer list is entitled to trade secret protection. Defendants also argue that the complaint fails to state facts to support its assertion that the defendants were on notice of the secrecy of the customer information or that the customer information was a secret and that parks discovered the information by improper means.

The court here finds that the complaint alleges the material facts to support the above stated cause of action for misappropriation of trade secrets. Material facts are those that are essential to show the liability that is sought to be enforced. General State Authority v. Sutter Corp., 44 Pa. Commwlth. 156, 403 A.2d 1022 (1979). Sufficient facts must be stated to define the issues to be tried and put an opponent on notice of what he or she will be called upon to meet at trial; however, evidentiary matters are not to be included in the pleading. Com., Dept. of Transp. (PennDOT) v. Bethlehem Steel Corp., 33 Pa. Commwlth. 1, 380 A.2d 1308 (1977). It is held that to require a party to plead purely evidentiary matters or matters that are the proper subject of discovery would emasculate Pa.R.C.P. §1019. Pike county Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978).

In Iron Age Corp. v. Dvorak, 880 A.2d 657 (Pa. Super. 2005), the Superior Court held that an employer’s customer list was available to competitors through legitimate means and, thus, could not be declared a “trade secret” so as to be entitled to protection by injunctive relief. However, in reaching that conclusion the court relied upon the testimony of witnesses including a former employee which proved that the customer lists were widely known, and, in the industry in question potential customers were identified through public sources and customers were shared. Thus, the ultimate finding as to whether or not the customer list which plaintiff alleges was “stolen” by defendants can only be determined by analysis of the available evidence, either through summary judgment or trial.

The court here concludes that plaintiff has sufficiently stated a cause of action under PUTSA for misappropriate of trade secrets; that the defendants have been put on notice of the facts against which it must defend and that to require any further facts to be alleged would improperly require the pleading of evidence. The court further finds that discovery is available to defendants to discover the information that will ultimately be relevant in making a judicial determination as to whether or not the customer information in question constitutes a trade secret.

Preliminary Objection in the Nature of a Motion to Dismiss Count 2 — Failure to State a Cause of Action for Intentional Interference With Contractual Relations

In count 2 of the complaint, the plaintiff has alleged that a contractual relationship existed between the plaintiff and Parks. That contractual relationship required that Parks not compete with plaintiff and that he maintain the secrecy of customer lists. Plaintiff has alleged that the defendants intentionally encouraged Parks to steal information from plaintiff’s client lists for the purpose of soliciting business for Emery Sealcoating, a business which Parks unlawfully entered into in combination with the defendants. The plaintiff alleges that the agreement not to compete between Parks and plaintiff was legally valid and enforceable and that defendants encouraged Parks to violate the agreement by misappropriating the customer information with specific intent to harm plaintiff by disrupting existing contractual relations that plaintiff had with its customers or preventing further contractual relations with customers from being formed. Plaintiff has alleged that defendants have not had any privilege or justification for their intentional actions in encouraging parks to violate the agreement.

Generally, one who, without privilege to do so, induces or otherwise purposely causes a third person not to perform a contract with another is liable to the other for harm caused thereby. Raneri v. DePolo, 65 Pa. Commwlth. 183, 441 A.2d 1373 (1982). The elements of intentional interference with contractual relations are: (1) the existence of a contractual relation between the complainant and the third party; (2) purposeful action by the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of a privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as the result of the defendant’s conduct. Phillips v. Selig, 959 A.2d 420 (Pa. Super. 2008), appeal denied, 967 A.2d 960 (Pa. 2009). The tortious interference with a contract requires the involvement of at least three parties: the two contracting parties and a third person who interferes with that contract. Kia v. Imaging Sciences, Intern., Inc., 735 F. Supp. 2d 256 (E.D.Pa. 2010).

The facts in this case are similar to the facts found in Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957). In Morgan’s, one of the defendants admitted that he offered employment and ultimately hired the other defendants with knowledge that they had signed restrictive agreements with the plaintiff, and that they would be acting inconsistently with the covenants contained therein in the course of their new employment. The Morgan’s court noted that one who intentionally interferes with an existing contractual relation is subject to liability for the breach of the contract. The defendant asserted no privilege for inducing the breach of the covenants not to divulge confidential information, not to solicit or compete for the patronage of plaintiff Morgan’s customers, not to attempt to persuade customers to withhold their patronage, and not to divert plaintiff Morgan’s business. Such defendant was therefore enjoined from continuing the unlawful conduct. The facts alleged in the case at bar are nearly identical to the facts in Morgan’s where it is alleged that the defendants induced Parks to violate his contract with plaintiff by disclosing the content of confidential customer lists of plaintiff so that defendants, in a rival competing business, could solicit those customers. All of the necessary elements have been alleged including (1) the existence of a contractual relation between the plaintiff and the third party, Parks; (2) purposeful action by the defendants specifically intended to harm the existing relation, in that the defendants purposefully induced Parks to violate the contract by disclosing the confidential information and stealing customer information protected as a trade secret; (3) the absence of any privilege or justification on the part of the defendants, where it is alleged that the purpose of the defendants was to unlawfully compete in a rival business by using the protected information; and (4) the occasion of actual legal damage as the result of the defendants’ conduct, here unlawfully transacting business with plaintiff’s customers, disrupting existing contractual relations between plaintiff’s customers and Plaintiff, and preventing further contractual relations with the said customers from being formed with the plaintiff.

The plaintiff having alleged all the essential elements of the tort of intentional interference with contractual relations, defendants’ motion to dismiss count 2 of the complaint will be denied.

Preliminary Objection in the Nature of a Motion to Dismiss Count 3 — Failure to State a Cause of Action for Intentional Interference with Contractual Relations With Plaintiff’s Customers

In count 3 of the complaint, the plaintiff alleges that it had either contractual relations or prospective contractual relations with customers that were solicited by Parks and the defendants. Plaintiff further allege that the defendants and Parks specifically intended to harm plaintiff’s contractual relations with customers and to prevent prospective relations from occurring when they solicited the business of such customers with the intent to acquire their business for defendants’ business operations. According to the complaint, the defendants engaged in the conduct with the specific intent to harm plaintiff and acted without any legally valid privilege or justification for defendants’ interference, causing plaintiff to suffer damages in the form of lost profits.

The elements of intentional interference with contractual relations has been above set forth relative to defendants’ preliminary objections seeking to dismiss count 2 of the complaint in relation to the contract that existed between plaintiff and Parks. The same analysis applies with equal force as to defendants’ alleged interference with existing contractual relations that plaintiff had relative to existing customers. Thus, the defendants alleged unjustified interference with contractual relations that plaintiff had with its customers that were not privileged is actionable where it is alleged that the defendants used improper means to solicit the business of such customers away from plaintiffs in order to acquire that business for their own business operation.

With respect to the allegation of intentional interference with the prospective contractual relationships between plaintiff and its customers, a claim for intentional tortious interference with prospective contractual relationships requires that a plaintiff establish: (1) prospective contractual relations; (2) the purpose or intent to harm the plaintiff by preventing the relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) actual damage resulting from the defendant’s conduct.

A prospective contract relation is something less than a contractual right, but something more than a mere hope. In short, it is a reasonable probability that contractual relations will be realized or established. InfoSAGE. Inc. v. Mellon Ventures, L.P., 896 A.2d 616 (Pa. Super. 2006). The tort of interference with prospective contractual relations is an intentional one in which the actor is acting for the purpose of causing harm to the plaintiff. Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971).

Generally, a privilege exists in a case of competition between sellers or former customers and their suppliers. Yeager’s Fuel, Inc. v. Pennsylvania Power & Light Co., 953 F. Supp. 617 (E.D.Pa. 1997); Wexler v. Greenburg, 399 Pa. 569, 160 A.2d 430 (1960). One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his or her competitor or not to continue in an existing terminable at-will contract with the competitor is privileged to do so and therefore does not interfere improperly with the competitor’s relation if: (1) the relation concerns a matter involved in the competition between the actor and another; and (2) the actor does not employ wrongful means, Here, the complaint negates a finding of privilege on the part of the defendants, where they are alleged to be in competition with the plaintiff, because the improper means utilized by the defendants have been alleged. The complaint specifically alleges that defendants encouraged Parks to violate his employment agreement with plaintiff by unlawfully disclosing confidential customer lists and unlawfully stealing from plaintiff customer information and providing that information to the defendants.

For the foregoing reasons, the court finds that plaintiff has alleged a cause of action for intentional interference with contractual relations and interference with prospective contractual relations regarding plaintiff’s customers.

Preliminary Objection in the Nature of a Motion to Dismiss For Lack of Specificity

Throughout defendants’ preliminary objections, defendants have repeatedly asserted a lack of specificity relative to the allegations of the complaint. In finding that plaintiff has sufficiently alleged a cause of action for misappropriation of trade secrets, the court has already addressed the specificity issue indicating that the additional specificity which defendants request is in reality a request to require plaintiff to plead evidence and seeks factual information that is more appropriately addressed through the discovery process.

The defendants specifically assert the failure of the complaint to allege the date when Parks breached the employee non-compete agreement; the failure of the complaint to allege facts to support the assertion that defendants encouraged Parks to steal information from plaintiff’s client lists and that the defendants solicited business from plaintiff’s customers; the failure of plaintiff’s complaint to set forth facts to support the allegations that defendants continue to do business as Emeiy’s Sealcoating; the failure of plaintiff’s complaint to provide the nature of the customer information which defendants allegedly obtained improperly; the failure of plaintiff to provide specific factual details to support assertions of misconduct by the defendants; failure of the complaint to allege when and where the wrongful conduct of acquiring business by contracting with and soliciting business from customers of plaintiff occurred; and the general failure of the complaint to aver the specific date, time, identity of parties or location relating to the material facts supporting the plaintiff’s cause of action which prevents defendants from adequately investigating the claims and preparing an appropriate response of pleading.

The requirements and purpose of Pa.R.C.P. §1019(a) is summarized in Goodrich Amram 2d, Volume 2, Section 1019(a):l as follows:

The material facts on which a cause of action...is based must be stated in a pleading in a concise and summary form. The purpose of this Rule is to require a plaintiff to disclose the material facts sufficient to enable the adverse party to prepare the case. [T]he complaint must not only give the defendant notice of what the plaintiff’s claim is and grounds upon which it rests, but also must formulate the issues by summarizing those facts essential to support the claim. (Citing Finegold v. Hendrzak, 15 A.3d 937 (Pa. Super. 2011); Foster v. UPMC South Side Hosp., 2 A.3d 655 (Pa. Super. 2010), appeal denied, 12 A.3d 371 (Pa. 2010); Toney v. Chester County Hosp., 961 A.2d 192 (Pa. Super. 2008), order aff’d, 36 A.3d 83 (Pa. 2011); McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010).

Material facts are those that are essential to show the liability that is sought to be enforced. General State Authority v. Sutter Corp., 44 Pa.Commwlth. 156, 403 A.2d 1022 (1979). A complaint that fails to set forth material facts to support the claim is inadequate because a plaintiff must know the ground upon which to make the defense; thus, if there is a question of the basis on which the complaint seeks recovery, the complaint is insufficient. Starks v. Montgomery County Housing Authority, 11 Pa. D. &C.3d 93 (1978); Cassell v. Shellenberger, 356 Pa. Super. 101, 514 A.2d 163 (1986).

Here, the court has performed an analysis regarding each count of the complaint and has demonstrated how the material facts upon which each cause of action is based has been set forth. Defendants’ claim of lack of specificity is in reality a request that the plaintiff provide detail that is not necessary to support each cause of action. Although defendants cite Pa.R.C.P. 1019(f) as requiring the pleading of time and place, whether the pleading of time or place is required depends upon the significance of time and place, where these factors are not significant, discovery offers an adequate remedy. Gilbert v. Wohl, 56 Pa. D. &C.2d 376 (C.P. 1972). The Pennsylvania Rules of Civil Procedure do not require a party to do the impossible and what is sufficiently specific as to time depends upon the nature of the circumstances. Here, knowledge of the exact date and time of the alleged wrongful acts of the defendants are particularly within the control of the defendants and not the plaintiff. It is likely that ascertaining the date and time at which the events occurred will come about through the discovery process. The specific dates and times are not crucial to the cause of action but may be relevant to determining the time that the cause of action arose for purposes of addressing the statute of limitations. In fact, defendants have raised the issue of the statute of limitations in their brief although not in the preliminary objections. The court at this time will not consider the statute of limitations, as the defense of the statute of limitations must be raised by way of new matter and is not appropriate for determination by way of preliminary objections. Pa.R.C.P. 1030; Cobbs v. Allied Chem. Corp., 443 Pa. Super. 386, 661 A.2d 1375 (1995). With the issue preserved in new matter, the discovery process can develop the evidence relating to when the cause of action arose, which in turn will allow the issue to be determined through either summary judgment, or at trial, if a factual issue is raised relative to the applicability of the statute of limitations. Cf Farinacci v. Beaver County Industrial Dev. Authority, 510 Pa. 589, 511 A.2d 757 (1986) holding that preliminary objections available to a party do not include the bar of a statute of limitations.

The court therefore concludes that the complaint contains sufficient specificity and as to each cause of action the plaintiff has alleged the material facts necessary to support each cause of action. Accordingly, the defendants’ preliminary objections in the nature of a motion to dismiss for lack of specificity will be denied.

ORDER OF COURT

And now, this 22nd day of August, 2013, in accordance with the accompanying opinion of even date herewith, it is ordered and decreed that the defendants’ preliminary objections to the plaintiff’s complaint are each denied. The defendants shall file an answer to the complaint within twenty (20) days of the date this order is docketed.


author: TUNNELL, J.,

text:
    Jenkins v. Martin Law Offices, LLP

      Scott M Rothman, for plaintiff.

      Aaron D. Martin, for defendant.
    August 26, 2013
   TUNNELL, J.,

FINDINGS OF FACT

1. Plaintiff David Jenkins was employed as an associate of the firm of Martin Law Offices, LLP (“Martin”) pursuant a written offer dated January 17, 2006.

2. The offer letter was drafted by defendant Martin.

3. Although a subsequent formal written employment agreement was envisioned, none was ever created.

4. Under the agreement, Jenkins was to be paid a salary of $1,200 per week.

5. The agreement specified that his employment was “at will”.

6. The agreement further specified that “You will be required to bill a minimum of thirty (30) hours of client work per week.”

7. In fact, in the two years that Jenkins worked for Martin, he never hit his minimum billing of 30 hours a week of client work.

8. Jenkins did all the client work given to him by Martin.

9. Jenkins maintained detailed billing records for both client work and firm (i.e. non-billable) work which he regularly turned over to Mr. Aaron Martin.

10. Mr. Aaron Martin used those records in order to generate bills to clients for Mr. Jenkins’ time.

11. On those occasions when he would write Mr. Jenkins’ time down and not bill it, he ordinarily gave Jenkins full credit for that time.

12. Martin never disciplined or reprimanded Jenkins for poor performance, nor for underbilling.

13. For the initial weeks of Jenkins’ employment, he was paid $ 1,200 even though no hours had yet been billed.

14. Well into Jenkins’ employment, for the period of February 19, 2007 to March 2, 2007, Jenkins’ billing report (Exhibit D-l), when analyzed, demonstrates that he billed some 7.8 hours of client work over two weeks.

15. The payroll records produced by Martin (Exhibit P-4) for the same time period report that Jenkins’ gross earnings were $2,400 for that same two-week time period.

16. When Jenkins was not fully paid his weekly salary, the actual reason was Martin’s cash flow problems.

17. The court does not credit the defendant’s testimony that the decreased sums paid to Jenkins were the result of an intentional adjustment to his salary by reason of his under-billing.

DISCUSSION

The parties do not dispute that their contractual relationship is governed by a letter dated January 17, 2006 that was sent to Mr. Jenkins. They disagree about the effect of the first two paragraphs, and further whether the same were subsequently modified. The salient parts of those two paragraphs are as follows:

This letter will confirm that Martin Law Offices, LLP (“the Firm”) has extended an offer to employ you as an associate of the Firm at the gross rate of compensation of one thousand two hundred dollars ($1,200) per week subject to provisions to be memorialized in a subsequent formal, written employment agreement. Such agreement shall include, without limitation, the exertion of your exclusive and best efforts for the Firm and non-competition for the duration of your employment with the Firm.
You will be required to bill a minimum of thirty (30) hours of client work per week.

There was no subsequent formal contract.

Mr. Jenkins had no hourly work of his own. He testified that he performed all of the client work that the defendant requested he perform, that he was never disciplined or reprimanded for poor performance or substandard work, and that he kept track of his billable and non-billable time, which he turned over to Mr. Martin. He argues that their agreement did not expressly condition his right to receive his salary on any minimum billing requirement.

Mr. Aaron Martin testified that under the parties’ agreement plaintiff was required to bill a minimum of 30 hours per week in order to be paid his salary of $1,200 per week. He testified that Mr. Jenkins substantially underperformed by not billing anything close to 30 hours a week of client work. For that reason, the defendant says it did not compensate the plaintiff at the rate agreed upon. Mr. Aaron Martin testified that Mr. Jenkins acquiesced without protest. This conduct, Martin contends, shows that the parties modified the terms of the written agreement.

Questions that arose in the court’s mind during trial included whether, if Mr. Jenkins billed more than 30 hours a week would he be entitled to additional compensation, unanswered by the contract, and whether there really was any relationship at all between salary and billing. It would seem illogical if Mr. Jenkins could bill zero hours for two months and expect to be paid his weekly salary of $1,200 but, again, the contract itself is indefinite on this. On the other hand, the relationship was at will. Ultimately, as several telltale pieces of parol evidence came in, the court concluded it could resolve the ambiguity.

Contemporary contract law generally provides that a contract is enforceable when the parties reach a mutual agreement, exchange consideration and have outlined the terms of their bargain with sufficient clarity. Com. Dept. of Transportation v. First Pennsylvania Bank, 77 Pa. Cmwlth. 551, 466 A.2d 753 (1983). An agreement is sufficiently definite if the parties intended to make a contract and there is a reasonably certain basis upon which a court can provide an appropriate remedy. Linnet v. Hitchcock, 324 Pa. Super. 209, 214, 471 A.2d 537, 540 (1984). The paramount goal of contractual interpretation is to ascertain and give effect to the intent of the parties. Burns Mfg. Co., Inc. v. Boehm, 467 Pa. 307, 313, 356 A.2d 763, 766 (1976). Where the language of a written contract is clear and unequivocal, its meaning must be determined by its contents alone. Mears, Inc. v. National Basic Sensors, 337 Pa. Super. 284, 289, 486 A.2d 1335, 1338 (1984). If there is some ambiguity in the contract, a court may examine the surrounding circumstances to ascertain the intent of the parties. Kennedy v. Erkman, 389 Pa. 651, 655, 133 A.2d 550, 552 (1957). Furthermore, if it is asserted that part of a contract is oral, the court may also in that situation examine the surrounding circumstances to determine the parties’ intent. Westingthouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 171-72, 228 A.2d 656, 659 (1967). Courts wish to effectuate the parties’ intentions, and for that reason they may enforce an indefinite contract if its terms become definite as the result of partial performance; one or both parties may perform in such way as to make definite that which was previously unclear. Murray On Contracts, Section 51-52 (1974).

The course of the parties’ performance under a contract is always relevant in interpreting that contract. Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736, 741, n. 6 (1978). The “course of performance” is a sequence of conduct between the parties after forming the contract and during performance of the terms of the contract which may be used only to interpret that contract. Matthews v. Unisource Worldwide, Inc., 748 A.2d 219 (Pa. Super. 2000), app. den. 568 Pa. 664, 795 A.2d 977 (2000). Where, as here, an ambiguity exists in the contract, parol evidence is admissible to explain, clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the agreement or by extrinsic or collateral circumstances, In Re: Estate of Herr, 400 Pa. 90, 161 A.2d 32 (1960). Under the rule of contra proferentem, any ambiguous language in a contract is construed against the drafter and in favor of the other party if the latter’s interpretation is reasonable. Sun Co., Inc. v. Pennsylvania Turnpike Commission, 708 A.2d 875 (Pa. Cmwlth. 1998).

Martin’s available payroll records were spotty but the court looked at what there was ante litem motam. First of all, Jenkins was paid $1,200 per week for the initial weeks of his employment even though no hours had been billed. A full year later, Jenkins’ own billing records for the period February 19, 2007 to March 2, 2007 demonstrate that he billed a total of 7.8 hours of client work for those two weeks. Martin’s payroll records for the same period of time report Jenkins’ gross earnings as $2,400 for that same two-week period. This evidence turns the case in Jenkins’ favor.

CONCLUSIONS OF LAW

1. No formal written employment agreement having been created, the terms and conditions of the parties’ undertakings remained as set forth in the offer letter of January 17, 2006.

2. The parties’ agreement did not expressly condition Jenkins’ right to receive his salary on the minimum billing requirement.

3. Defendant Martin never altered Jenkins’ salary.

4. The contract was never modified by the parties.

5. As demonstrated by the 2007 payroll records, Jenkins was entitled to his weekly salary even if he did not hit his minimum under the parties’ agreement.

6. Due to the operation of the statute of limitations for contracts, plaintiff is barred from receiving any salary payments prior to August 12, 2007.

7. Any claim under the Pennsylvania Wage Payment and Collection Law, 43 P.S. §260.6, is likewise barred by operation of the three-year statute of limitations.

8. Defendant materially breached the parties ’ agreement.

9. As a result of defendant’s breach, plaintiff is entitled to his weekly salary of $1,200 from August 12, 2007 to February 28, 2008 in the amount of $35,760, plus prejudgment interest at the legal rate from August 12, 2007.

ORDER

And now, this 26th day of August, 2013, following trial by the court sitting without a jury on July 15, 2013, and after consideration of the parties’ proposed findings of fact and conclusions of law, the court finds in favor of the plaintiff David Jenkins and against the defendant Martin Law Offices, LLP in the amount of $35,760, plus interest at the legal rate from August 12, 2007, plus costs.


author: MINORA, J.,

text:
    White v. Medical Protective Company

      Timothy G. Lenahan, for plaintiff.

      James A. Doherty, Jr., Lynn Sara Kornblau, Jeffery B. McCarron and Jeffrey Lerman, for defendants.

      August 27, 2013
   MINORA, J.,

I. Introduction

Before the court is a discoveiy dispute framed as a plaintiff’s motion to strike the law firm defendant’s appeals of two orders of our special trial master (hereinafter “STM”) for discovery dated April 15, 2013 and April 18, 2013. The form of the motion to strike is procedural in natural. For the reasons that follow, the plaintiff’s motion to strike both orders is denied and dismissed.

II. Factual Background

This discoveiy dispute arises from an underlying medical malpractice case filed against Richard Behlke, M.D. and Ob-Gyn Consultants, Ltd. (hereinafter “Behlke” and “Ob-Gyn”) to the term and number Court of Common Pleas of Lackawanna County No. 03 CV 2663. In sum, the case alleged that Behlke and Ob-Gyn were professionally negligent in the delivery and birth of the minor Plaintiff, Cody White. The allegations of negligence were that Behlke and Ob-Gyn committed professional negligence/ medical malpractice in managing the time prior to birth and the birth and delivery of Cody White all of which resulted in Cody suffering severe hypoxic ischemic encephalopathy which resulted in profound permanent and totally disabling birth injuries along with significant economic and non-economic damages, (the 2003 lawsuit).

The resultant verdict onNovember 17,2008 was in favor of the plaintiff amounting to twenty million, five hundred thousand dollars ($20,500,000.00). Once the verdict was modified for delay damages, the verdict was molded to twenty seven million, three hundred and fifty-two thousand dollars and twenty-one cents ($27,352,195.21). It was later affirmed by the Pennsylvania Superior Court.

The size of the verdict far surpassed the insurance coverages of both defendants Behlke and Ob-Gyn. Accordingly, Behlke and Ob-Gyn assigned their potential causes of action against their insurers and their counsel to the Plaintiffs which gave rise to our instant lawsuit. Counsel for Behlke and Ob-Gyn in the 2003 suit was the law firm of Weber, Gallagher, Simpson, Stapleton, Fires and Newby, LLP (hereinafter “Weber, Gallagher”). In our suit herein, there are a variety of allegations contended by the plaintiff which allege that defendants breached their duties in representing Behlke and Ob-Gyn in the 2003 lawsuit. By assignment, these claims are now being asserted herein by our plaintiff’s.

In pursuit of those claims being asserted by plaintiffs, there have been frequent discovery disputes which have arisen. The disputed orders from the STM dated April 15, 2003 and April 18, 2003 are now being challenged by plaintiff’s motion to strike on procedural grounds which solely attack the procedural nature of defendant’s appeal. Our duty is to render a procedural non-substantive decision on whether defendant’s appeal was properly filed or procedurally fatally deficient.

Plaintiff’s Argument

Plaintiff argues that defendant’s appeal of the STM’s April 15, 2013 and April 18, 2013 discovery orders was in violation of the Lackawanna County Rules of Civil Procedure and further argues that the procedural violation is fatal and Defendant’s appeal cannot be substantively entertained by the court because the violation divests this court of jurisdiction. Accordingly, plaintiff has filed motions to strike defendant’s appeal of the two orders issued by the STM.

Plaintiff states, “The Lackawanna County local rules clearly definite the requisite procedure to properly perfect an appeal from an Order of the Special Trial Master.”

The argument, in essence, is that in order to properly appeal an order of the special trial master an appellant must present an appeal motion to the designated motions court judge per Lacka. Co. R.C.P. 206.4(c) together with proof of payment of the appropriate fee.

A review of Lacka, Co. R.C.P. 206.4 and 4000.1(b) reveals the accuracy of plaintiff’s argument. Lacka. Co. R.C.P. 4000.1(b) states:

(b) An order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the designated Motion Court Judge in accordance with Lacka. Co. R.C.P. 206.4(c) together with proof of payment to the Clerk of Judicial Records of an appeal cost in an amount to be set by the court from time to time. The appeal motion shall be filed within ten days of the order of the Special Trial Master and shall be considered by the court pursuant to Lacka. Co. R.C.P. 4000.

Lacka. Co. R.C.P. 206.4(c) is incorporated by reference in Lackawanna County Rule 4000.1(b) and it requires that one seeking to obtain a rule to show cause must present a petition to the motions court judge per Lacka. Co. R.C.P. 208.3(a).

Lacka. Co. R.C.P. 208.3(a) requires the moving party to serve all counsel with a copy of the motion or petition that will be presented advising them of the date certain when presentation will take place and provide, at a minimum, three business days notice prior to presentation.

Plaintiff correctly states the prescribed procedure and notes a clear violation of this correct procedure in the path chosen by defendant Weber Gallagher.

With regard to both the orders of April 15, 2013 and April 18, 2013 defendant Weber Gallagher alleges that they forwarded an appeal sent via United Parcel Service (UPS) to the prothonotary on April 22,2013 and April 25, 2013 respectively. Defendant Weber Gallagher, though timely filed, never timely presented a motion or petition to a motions court judge with three business days notice to other counsel obtaining the rule returnable within twenty days of the issuance of the orders by the STM.

Subsequently, as noted at page 6 of plaintiff’s brief noted at footnote 1, “...in obvious recognition of their error and in an untimely attempt to cure the same,” the defendant filed a “Praecipe for Assignment” for at least the April 15, 2013 order. It is unclear whether this innovative procedure of defendant Weber Gallagher was ever done for the April 18, 2013 order.

Plaintiff’s punch list of defendant’s errors in attempting to perfect their appeal is articulated also at page 6 of their brief wherein plaintiff notes defendant Weber Gallagher has failed to:

(1) present to the designated motion court judge;
(2) any motion or petition; and
(3) obtain a rule returnable within ten days of the orders being appealed.

Thus far, we have little quarrel with plaintiffs stated arguments and positions. Where we tend to part ways with plaintiff’s position is when they conclude that this ends the matter. Plaintiff alleges defendant Weber Gallagher’s appeal is dead, cannot be revived and plaintiffs reach these conclusions with their analysis of what defendant Weber Gallagher did timely within the context of their incorrect procedure. We shall review this by now exploring defendant Weber Gallagher’s counter argument.

Defendant’s Argument

In filing their appeal, defendants contend that they proceeded in good faith but were relying upon an outdated version of the Lackawanna County Rules of Civil Procedure posted on Lackawanna County’s official website. Unfortunately, the older version of Lacka. Co. R.C.P. 4000.1 (b) is posted on that website without updates and it reads discretely differently from the current version. The older version of Lacka. Co. R.C.P. 4000.1(b) reads as follows:

“Rule 4000.1 Motion for Presentation before a Special Trial Master
...(b) An order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the court, together with proof of payment to the Clerk of Judicial Records of an appeal cost of an amount to be set by the court from time to time. The appeal motion shall be filed within ten days of the order of the Special Trial Master and shall be considered by the court pursuant to Lacka. Co. R.C.P. 4000.1.”

Reference to Lacka. Co. R.C.P. 4000 entitled Motion Practice for Discovery and Scheduling Matters requires, “...orders shall be sought by the presentation of a motion in compliance with the provisions of Lacka. Co. R.C.P. 206.1, 4000.1 (noted above) and 4019.” (Insert added).

Lacka. Co. R.C.P. 4019 does not apply to our case since it deals with sanctions motions before the STM. Lacka. Co. R.C.P. 206.1 deals with, as entitled, “Definitions of Petition” which refers us to Lacka. Co. R.C.P. 206.4(c) which deals with the notice provisions germane to the title, “Issuance of a Rule to Show Cause.”

When read side by side, there are discernable differences between old Lacka. Co. R.C.P. 4000.1 and new Lacka. Co. R.C.P. 4000.1(b). We will note their differences by dashing out deletions and underlining additions.

Old Lacka. Co. R.C.P. 4000.1(b) entitled “Motion for Presentation Before A Special Trial Master”:

(b) An order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the court, together with proof of payment of the Clerk of Judicial Records of an appeal cost of an amount to be set by the court from time to time. The appeal motion shall be filed within ten days of the order of the Special Trial Master and shall be considered by the court pursuant to Lacka. Co. R.C.P. 4000.”

The new version of Lacka. Co. R.C.P. entitled “Motion for Presentation Before A Special Trial Master” was published in the Pennsylvania Bulletin on Saturday, March 26, 2011 at 41 Pa. B. 1620. It amended the rule with a February 7,2011 order by President Judge Thomas J. Munley, effective thirty days after publication pursuant to Pa. R.C.P. 239(d).

It reads as follows:
Rule 4000.1 Motion for Presentation Before A Special Trial Master.
(b) An order of the Special Trial Master may be appealed de novo by presentation of an appeal motion to the court designated Motions Court Judge in accordance with Lacka. Co. R.C.P. 206.4(c). together with proof of payment of to the Clerk of Judicial Records of an appeal cost of in an amount to be set by the court from time to time. The appeal motion shall be filed within ten days of the order of the Special Trial Master and shall be considered by the court pursuant to Lacka. Co. R.C.P. 4000. (underline additional language; strikethrough deleted language).

The critical distinction between the old rule 4000.1 and the new version of Lacka. Co. R.C.P. 4000.1 is that old rule allowed for presentation to the court, which arguably can have occurred when a motion is presented for filing to this court’s Clerk of Judicial Records. Conversely, the new version of the Lacka. Co. R.C.P. 4000.1 requires presentation, “...to the designated Motions Court Judge in accordance with Lacka. Co. R.C.P. 206.4(c),...” which admittedly by all parties did not occur here.

Plaintiffs argue that this represents a fatal defect terniinating defendant Weber Gallagher’s appeal of the two orders by the STM. They go even further and assert that this procedural error is so egregious that it divests this court of jurisdiction to hear the matter substantively.

Defendant Weber Gallagher argues that they proceeded in good faith reliance upon the outdated Lacka. Co. R.C.P. 4000.1 that was posted on the county website. They argue that in good faith, they presented the motion to the court by timely filing with the Clerk of Judicial Records for appeals of both orders of the STM. They go on to assert that with regard to both orders, they paid the appropriate filing fee to the Clerk of Judicial Records and they also note that all of these matters were concluded in timely fashion in reliance upon the outdated rule. In this, there seems to be no dispute between the parties.

Where plaintiffs and defendant Weber Gallagher part ways is in interpreting the impact of defendant Weber Gallagher’s failure to follow the current version of the rule’s requirement that they present an appeal motion to the designated motions court judge within ten days of the orders being appealed.

As noted earlier, plaintiffs take the position that defendant’s procedural deficiencies are fatal, defendant argues to the contrary. Defendants positthat atimely appeal that is defective in form does not negate the appeal nor render it invalid. In support of their position defendant’s cite to 42 Pa. C.S.A. §5103 and Pa. R.C.P. 902. They note that it is uncontested by plaintiff that defendants appeals were timely and that all appropriate fees were paid. Defendant argues they are entitled to nunc pro tunc relief if their appeal is timely filed and they cite to the case of Vietri ex. rel. Vietri v. Delaware Valley High School, 63 A.3d 1281, 1284 (Pa. Super. 2013). Here, defendant again argues they proceeded in good faith, made timely appeals, paid the appropriate fees and their only error was to rely on our outdated rule that appeared on the Lackawanna County website. It was this last misplaced reliance which created their difficulties. According to Vietri, supra, at page 1284, the court can grant nunc pro tunc relief where an appellant demonstrates that, “...(1) his notice of appeal was filed late as a result of non negligent circumstances either as they relate to appellant or appellant’s counsel; (2) he filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay.” The only prejudice plaintiff claims herein is the need to proceed through the appeals process if we rule for defendant.

Plaintiff has clearly elevated process over substance and overstated the consequences of defendant’s predicament. We believe this to be so for many of the reasons stated but also for the critically applicable rule that remains uncited by either counsel.

III. Legal Analysis

We believe that Pa. R.C.P. 126 entitled Liberal Construction and Application of Rules governs our present case and its circumstances. It states as follows:

“The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of such actions or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” (emphasis added).

Like any other rules of court, local rules should be liberally construed to secure just, speedy and inexpensive determination of every action or proceeding to which they are applicable. Pennridge Elec. Inc. v. Souderton Area Joint School Authority, 615 A.2d 95, 419 Pa. Super. 201 (Pa. Super. 1992). Accordingly, we now know that Pa. R.C.P. 126 applies to our local rules as well.

The interpretation and application of a Rule of Civil Procedure presents a question of law. Keller v. Mey, 2013 Westlaw 1450494 Super. 2013. Therefore, it is suitable for this court to determine such a question.

Plaintiff has argued that defendant’s failure to timely present its appeal to the motion court judge renders the appeal invalid and divests this court of jurisdiction to hear this matter. We disagree.

The critical timing in this case is the timeliness in filing the appeal with our court and not necessarily the timeliness of its presentation to the motion court judge. Clearly, the most desirable course is the following the correct governing rule which was not done here but the timely filing with the court and payment of fees was accomplished by defendants. This was noted in the case of McCarron v. Upper Gwynedd Tp., 591 A.2d 1151, 139 Pa. Cmwlth. 528 (Cmwlth. Ct. 1991). In that case, which involved an error in nomenclature, the court said that the Commonwealth Court will continue to look at the substance of what parties actually did in analyzing procedure.

In interpreting Pa. R.C.P. 126, the Superior Court case of Slaughter v. Allied Heating, 636 A.2d 1121, 431 Pa. Super. 348 (Pa. Super. 1993), appeal denied, 652 A.2d 839, 539 Pa. 669, stated that the rule calling for liberal application of the Rules of Civil Procedure (Pa. R.C.P. 126) does not require the trial court to disregard procedural defects; rather it permits the trial court to do so in the exercise of its discretion where the substantive rights of the opposing party have not been prejudiced. Complaints about the time and effort required in engaging in the appeals process do not prejudice any substantive rights of the plaintiff.

Furthermore, the court in exercising the above noted discretion is directed to look favorable only upon a party who has made a substantial attempt to conform as has been done here by defendants. In the case of Womer v. Hilliker, 908 A.2d 269, 589 Pa. 256 (Pa. 2006), our Supreme Court stated that the latitude to overlook any procedural defect that does not prejudice a party’s substantive rights is reflected in the doctrine of substantial compliance. They went on to observe that Rule 126 relief should not be available to a party who disregards the terms of the rules in their entirety and determines their own steps they can take rather than following the rules.

Our case shows defendant’s bona-fide effort to comply with our local rules. The crux of defendant’s error being that they followed the directives of an old invalid rule that had been amended rather than the current, correct, governing rule. Defendant’s deviation from the proper procedure was a creature of compliance with the wrong rule and not a cavalier dismissal of the rules in favor of their own ad hoc procedure.

Pa. R.C.P. 126 does not literally apply to local rules of court; however, our Pennsylvania Supreme Court has indicated that Rule 126 applies to rules that are local in origin. Hesselgesser v. Glen Craft Contractors, Inc., 287 Pa. Super. 319, 430 A.2d 305 (1981); Byard F. Borgan, Inc. v. Holmes Elec. Protective Co. of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983); DeAngelio v. Newman, 501 Pa. 144, 460 A.2d 730 (1983).

Furthermore, overlooking a procedural defect does not, in any way, in and of itself alter the jurisdiction of the court. Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989). Defendant’s failure to meet the requirement to present a discovery appeal to the motions court judge is such a procedural defect since its inception arises out of our local rules. (See Lacka. Co. R.C.P. 4000.1(b)).

The test to be applied by the courts in determining whether to disregard a procedural error is whether substantive rights would be affected. Clinger v. Tilley, 423 Pa. Super. 121, 620 A.2d 529 (1993). The substantive rights of a party are affected if that party would be prejudiced. Ibid, Clinger. Here, the parties can still proceed with their lawsuit and the inherent discovery dispute can proceed on appeal, therefore, no substantive rights are affected. In addition, defendant has shown substantial compliance and good cause for their procedural error or defect. Delverme v. Pavlinsky, 405 Pa. Super. 443, 592 A.2d 746 (1991) and Womer v. Hilliker, supra, at pages 280, 274. We do not grant this relief indiscriminately.

Conclusion

Contrary to Charles Dickens, the law is not an ass. Charles Dickens, Oliver Twist, chapter 51 p. 489 (1970) first published serially 1837-1839. The trial of a lawsuit is not a sporting event where the substantive legal issues are subordinated to the rule of the game, Byard F. Brogan, Inc. v. Holmes Elec. Protective Co. of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983) and procedural rules are not ends in themselves, but means whereby justice as expressed in legal principles is administered; they are not to be exalted to the status of substantive objectives; In Re: Larsen, 571 Pa. 457, 812 A.2d 640 (Spec. Trib. 2002) requiring rigid adherence. Womer, supra. Thus, the courts should not be astute in enforcing technicalities to defeat apparently meritorious claims. Lewis v. Erie Insurance Exchange, 281 Pa. Super. 193, 199, 421 A.2d 1214, 1217 (1980).

We shall be guided by these dictates in concluding that the plaintiff’s motions to strike the appeal of defendants from the April 15, 2013 and April 18, 2013 orders of the special trial master are hereby denied and dismissed.

An appropriate order follows.

ORDER

And now to wit, this 27th day August, 2013 upon due consideration of plaintiff’s motions to strike the defendant, Weber, Gallagher, Simpson, Stapleton, Fires and Newby, LLP’s appeals of the April 15, 2013 and April 18, 2013 orders of the special trial master for discovery along with the able oral and written arguments of counsel and in accordance with the foregoing memorandum, the motions to strike are hereby denied and dismissed.

      . See Brief in Support of plaintiff’s motion to strike defendant, Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP appeals to April 15, 2013 and April 18,2013 orders of the special trial master pg. 4.


author: JOHNSON, J.,

text:
    Roeshman v. Selig

      Anthony M. Muir, for plaintiff.

      Joseph C. Bernstein, for defendant.
    July 1, 2013
   JOHNSON, J.,

Before this court for consideration are the plaintiff’s exceptions to order of January 9,2013, and the defendant’s exceptions to interim order of January 9,2013. The court will apply an abuse of discretion standard to the master’s determinations.

Here, the court finds no abuse of discretion related to the exceptions raised by the plaintiff and, therefore, the plaintiff’s exceptions are denied.

The court is remanding to the master defendant’s exception # 11, in which the defendant seeks termination of spousal support, and then if the master determines that spousal support should not be terminated at this time, the master shall review defendant’s exceptions # 1-4 to recalculate the method of imputed income upon the defendant.

The first issue to be addressed is whether it is appropriate to terminate spousal support in this matter. The court takes note of several factors in this matter which weigh in favor of the termination of spousal support as the defendant requests. First, the marriage in this case lasted for a period of twenty-one (21) years. The divorce proceedings are still being continued in this matter seven (7) years after separation. The defendant has been providing spousal support for in excess of seven (7) years. At the beginning of this divorce, there were minor children of the marriage, all of whom have since reached the age of majority and are no longer cared for by the plaintiff. The plaintiff is well-educated and has been able to find work. It appears, from the record, that plaintiff has been able to secure two jobs in the recent past. It was mentioned at argument on the exceptions that plaintiff may have recently lost her employment and it is unclear whether she is currently working. Regardless of this, it appears conclusive that the plaintiff has the education and capability of finding work and supporting herself. While plaintiff’s income earning ability is less than defendant’s, alimony and support are to be based on the reasonable needs of the recipient and not solely on the prosperity of the payor. Nemoto v. Nemoto, 423 Pa. Super. 269, 620 A.2d 1216, 1221 (1993).

In addition, it appears that there is a possibility that the plaintiff has already received more spousal support than she would have if this divorce were granted earlier in this litigation. It appears that, under the factors listed in Pa.R.C.P. 1910.16-1(c)(2) and the factors for deviation from the support guidelines Pa.R.C.P. 1910.16-5, the length of the marriage is allowed to be considered when determining support. It appears that plaintiff is now able to support herself and continue to litigate her divorce as she has had substantial time to transition back self-sufficiency. This issue, exception # 11, is remanded to the master to make findings based on the factors of 23 Pa.C.S.A. 3701 and Pa.R.C.P. 1910.16-1.

Should the master conclude that termination of support is not yet appropriate in this case, the master is also directed to review the imputed income of the defendant. An imputed income should be placed on the defendant where he is intentionally failing to earn income or intentionally is reducing his income. Here, the master has recommended an imputed income for the defendant based on print-outs of online advertisements provided by the plaintiff. Upon review of these advertisements, there appear to be questions of their sufficiency as proof as to a possible earning potential. The locations of the advertised positions are unclear. It is also unclear whether those positions require travel. Defendant may not be eligible for travel depending on the requirements of other states. Also, the plaintiff should not be forced to pay support on an income that could be earned if he were to move away from his home. Finally, it should be noted that the defendant has conducted his practice in the same manner for his entire professional life and has made multiple unsuccessful attempts to attain board certification. It would appear unfair to state that the defendant is now expected to leave his long time practice and earn a higher income than he earned during the marriage simply for the sake of paying spousal support. Therefore, the issue of the defendant’s imputed income is also remanded for review by the master.

This court finds that the master is in a superior fact finding position but did not state his consideration of the factors listed above for determining the appropriateness of terminating spousal support at this juncture, therefore, this issue is remanded for further consideration. Should the master have considered this factors, and still concludes that spousal support is appropriate, the master is directed to correct the imputed income of the defendant. All other exceptions by both the plaintiff and the defendant are denied.

ORDER

And now, this 18th day of July, 2013, upon consideration of the plaintiff’s exceptions to order of January 9, 2013, filed on January 28, 2013, the defendant’s exceptions to interim order of January 9, 2013 filed January 28, 2013, each parties response thereto, after oral arguments, and for the reasons set forth in the accompanying memorandum opinion;

It is hereby ordered that:
1. Plaintiff’s exceptions are denied;
2. Defendant’s exception #11, requesting termination of spousal support, and any necessary imputation of defendant’s income pursuant to defendant’s exceptions #1-4 are remanded to the master for further review; and
3.All other exceptions of the defendant are denied.


author: WILLIAMSON, J.,

text:
    Miller v. Grunfelder

      Kevin P. Foley, for plaintiff.

      Steven T. Williams, for defendants.
    July 12, 2013
   WILLIAMSON, J.,

Plaintiff commenced this action by filing a complaint on December 23, 2008. On February 21, 2013, plaintiff forwarded defendants a notice of intent to serve subpoenas to produce documents and things for discovery pursuant to Rule 4009.21, et seq on Warner Insurance Company, Michelle Petrillo c/o Warner Insurance Company, and Sierra Claim Services. Defendants filed timely objections to the proposed subpoenas on March 12, 2013. Plaintiff filed a motion to overrule defendants’ objections to subpoena on May 2,2013. The matter was praeciped for argument. Both parties submitted briefs, and oral argument was heard on June 28,2013. We are now ready to dispose of the motion to overrule objections to subpoena. This matter arises out of an incident that occurred on December 27, 2006. The complaint alleges that plaintiff was sitting on defendant David Grunfelder’s vehicle in a McDonalds parking lot in Columbia, New Jersey. Defendant Kenny Grunfelder allegedly moved the vehicle, which caused plaintiff to fall and sustain injuries. At that time, defendants were insured by Warner Insurance Company, which was part of the Response Group, which was later purchased by Unitrin, and eventually became Kemper Services Group. After the accident, the Response Group engaged Sierra Claim Services to act as an outside adjuster.

OBJECTIONS TO SUBPOENAS

Warner Insurance Company, Michelle Petrillo, and Sierra Claim Services are not parties to this action. In their objections to the subpoenas, defendants argue that it is not permissible for a party to issue a subpoena to the insurance company and/or the agent of another party because the subpoenas compel the production of documents which exceeds what is permitted under the Pennsylvania Rules of Civil Procedure. Additionally, defendants note that it is questionable whether a subpoena issued in the Commonwealth of Pennsylvania is even enforceable against an out-of-state company. We find that this court has subpoena power over Warner Insurance Company (now part of Kemper) and Sierra Claim Services on the basis that they are corporations doing business in the Commonwealth, giving this court personal jurisdiction.

Pennsylvania statutorily defines the basis for personal jurisdiction over an out-of-state corporation as the following:

“[T]he following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(2) Corporations
(iii) The carrying on of a continuous and systemic part of its general business within this Commonwealth.”

42 Pa.C.S. §5301 (a)(2)(iii).

Warner Insurance Company carries on a continuous and systemic part of its business in Pennsylvania. The defendants aver that Warner Insurance Company was part of the Response Group, which was purchased by Unitrin, and eventually became part of Kemper Services Group. The Response Group website lists its address as PO Box 4079 Scranton, PA 18505-6079. Additionally, the Response Group website lists Pennsylvania as a state in which Warner Insurance Company is licensed to provide insurance. Therefore, Warner Insurance Company unquestionably carries on a continuous and systemic part of its business in Pennsylvania.

Sierra Claim Services also has a continuous and systemic part of its business in Pennsylvania. Sierra’s website lists Pennsylvania as a coverage area. Additionally, the court can infer that since Sierra was contracted by Warner Insurance Company/Response Group to assist them in the investigation of the claim, Sierra’s investigation would take place in Pennsylvania due to the plaintiff’s residence and medical treatment located in the Commonwealth.

Accordingly, this court has personal jurisdiction over Warner Insurance Company and Sierra Claim Services, LLC and the resulting authority to require that the companies comply with the subpoena served on them by plaintiff. Assuming Michelle Petrillo is an employee of Warner, as represented, the subpoena issued to her in that capacity should be answered as well.

Next, we turn to the issue of whether or not plaintiff’s proposed subpoenas are allowable under the Rules of Civil Procedure. Rule 4009.1, in pertinent part, states:

Any party may serve a request upon a party pursuant to Rule 4009.11 and 4009.12 or a subpoena upon a person not a party pursuant to Rules 4009.21 through 4009.27 to produce and permit the requesting party...to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, and electronically stored information), or to inspect, copy, test or sample any tangible things or electronically stored information, which constitute or contain matters within the scope of Rules 4003.1 through 4003.6 inclusive and which are in the possession, custody or control of the party or person upon whom the request or subpoena is served, and may do so one or more times.

Pa. R.C.P. §4009.1.

In regards to the scope of discovery, Pa.R.C.P. 4003.3 is instructive:

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer, or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories...

Pa. R.C.P. 4003.3 (emphasis added)

Here, plaintiff has requested certain documents from the incident file, including any and all investigative reports; statements, photographs, videos, diagrams, drawings, maps, charts, summaries, reports, correspondence, or any other documents pertaining to or referring to the accident that is the subject matter of this litigation. The subpoenas contain the exception that all mental impressions, conclusions, or opinions respecting strategy or tactics may be redacted, and that a privilege log is to be provided. Defendants argue that the subpoenas are overbroad and an attempt to “throw the kitchen sink” at the insurer to see what plaintiff can find. Defendants also argue that the Rules of Civil Procedure permit obtaining the information requested by means of a request for production of documents.

It has always been the policy of this court to liberally allow the free exchange of discoverable materials in any effort to expedite litigation and to adhere to the spirit of discovery rules. In this case, we believe that the plaintiff is entitled to a complete copy of the file from Warner Insurance Company, Sierra Claim Services, and Michelle Potrillo as an adjuster with any mental impressions, conclusions, and opinions respecting the value or merit of a claim or defense or respecting strategy or tactic to be redacted. “In supervising discovery [this court possesses] broad discretion to take such action as it deems appropriate to insure prompt and adequate discovery.” Iron Workers Savings and Loan Assoc, v. IWS. Inc., 622 A.2d 367, 377 (Pa. Super. 1993) (emphasis in original). We believe that the plaintiff is entitled to this information which is relevant to the subject matter and appears reasonably calculated to lead to the discovery of admissible evidence. Furthermore, we are not persuaded by defendants’ argument that the request is overly broad and burdensome. Defendant argues that the information will, or has, been provided during the course of discovery. If that is the case, subpoenas for the same information are not overly broad and burdensome, and are readily available to be produced.

We are cognizant of defendants’ argument that the request may be duplicative of discovery already provided. However, the nature of litigation and discovery today has bred an unfortunate mistrust and gamesmanship amongst counsel. Even if only one discovery abuse or even an innocent mistake has occurred in the past where all documents were not provided in some case, counsel will invariably want to exhaust all avenues in all of their cases to ensure they are adequately prepared. It is no different than a plaintiff providing all medical and employment records and information in their possession through discovery, and defense counsel sending subpoenas to medical providers and employers for much of the same records. It is unfortunate that the state of litigation has evolved into this, but there is nothing in the rules of civil procedure that prohibit such a practice. We also note that defense counsel represents the defendant as the insured, and not the insurance company or its agents being sent subpoenas. These are two separate and distinct entities, even if the records are ultimately still coming from one entity. For the foregoing reasons, we will overrule defendants’ objections to the subpoenas.

Finally, in plaintiff’s motion to overrule objections, her wherefore clause requests the court impose sanctions, preclude the defendants from contesting liability, and produce tape recordings and a videotaped re-enactment. Plaintiff has not supplied any case law, nor made any argument in her brief for the requested relief. Furthermore, a motion to overrule objections to subpoenas is not an appropriate avenue to demand the type of relief requested. For those reasons, and the reasons above, we enter the following order.

ORDER

And now, this 12th day of July, 2013, it is hereby ordered that the objections of defendants to plaintiff’s subpoenas directed to Warner Insurance Company, Sierra Claim Services, and Michelle Petrillo c/o Warner Insurance Company are hereby overruled, subject to the redactions contained within our opinion. Plaintiff may serve the subpoenas on Warner Insurance Company, Sierra Claim Services, and Michelle Petrillo c/o Warner Insurance Company.

      . Defendants do not make any mention whatsoever concerning this court’s jurisdiction to subpoena Michelle Petrillo, therefore, we will not address her in our jurisdictional analysis.