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Argument List No.13
No. 99-7472
"Ihnvc IAlhn-
Sterlin - and Esther Moll Plaintiffs (pro se
Jeffrey Rettig, Kenneth
Rapp, and Thomas,
Thomas & Hafer Defendants (attorney - Kenneth Rapp)
PRELIMINARY OBJECTIONS OF DEFENDANTS
Facts:
Plaintiffs filed a complaint against the above-named defendants targeting
defendants in their capacity as counsel for the Borough of Wormleysburg in a
separate and pending action filed by the plaintiffs in Moll v. Borough of
Wormleysburg. Plaintiffs action seeks punitive damages against defendants,
the return of a handwritten carbon copy letter of plaintiff Sterling Moll and the
removal of the defendants as counsel for the Borough. Plaintiffs charge that
Attorney Rettig failed to respond to plaintiffs request for a meeting.
Defendants now bring the following preliminary objections: (1) a demurrer
for legal insufficiency of the complaint; and (2) a motion to strike the claim for
punitive damages for insufficient specificity.
F:ldatalPVRlargument summarieslblank.doc
JAN 2 U
13 -fi'
Kenneth A. Rapp, Esquire
Attorney I.D. # 41671
Thomas,'rhomas & Hafer, LLP
305 North Front Street
P. 0. Box 999
Harrisburg, PA 17108.0999
(717) 237-7149
Attorneys for Defendants
STERLING K. MOLL and
ESTHER M. MOLL,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND CTY., PENNSYLVANIA
CIVIL ACTION - EQUITY
V.
JEFFREY B. RETTIG, KENNETH
A. RAPP, and THOMAS, THOMAS
& HAFER,
Defendants
NO. 99-7472
JURY TRIAL DEMANDED
DEFENDANTS' BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS
1. STATEMENT OF FACTS
On December 14, 1999, the p_ro se Plaintiffs, Sterling K. Moll and Esther M. Moll filed a
Complaint against Defendants, Jeffrey B. Rettig, Esquire, Kenneth A. Rapp, Esquire and
Thomas, Thomas & Hafer. Plaintiffs' Complaint targets the Defendants in their capacity as
counsel for the Borough of Wormleysburg in a separate and pending action filed by the Plaintiffs
in Moll et ux v Borough of Wormleysburg, docketed at No. 97-6274 in Cumberland County.
The Plaintiffs' Complaint generally seeks punitive damages against the Defendants, the
return of a handwritten carbon copy of a letter of Plaintiff Sterling Moll produced during Mr.
Moll's deposition in the Borough of Wormleysburg action, and the removal of the Defendants as
counsel for the Borough. The Plaintiffs allege that in the case of Moll et ux. v Borough of
Wormleysburg, Attorney Rettig, as counsel for the Borough of Wormleysburg, failed to
telephone or respond in writing to the Plaintiffs' request for a meeting with Attorney Rettig to
discuss Plaintiffs' Request for Admissions, Interrogatories and Plaintiffs' statements to the
Borough's insurance carrier.
In Count I of the Plaintiffs' Complaint, the Plaintiffs seemingly allege as a basis for
punitive damages that Defendant Rettig failed to return phone calls and provide responsive
letters to a request for a meeting. Plaintiffs, in Paragraph 19 of their Complaint, set forth
conclusory allegations claiming that Attorney Rettig's actions were "deliberately false, perjury, a
violation of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities, a violation of the
Rules of Professional Conduct, is malicious intent and represents obdurate, vexatious and bad
faith conduct."
In response to the Complaint, the Defendants filed two Preliminary Objections.
Objection one is in the nature of a Motion to Dismiss the Complaint for legal insufficiency of a
pleading (demurrer); Objection two is a Motion to Strike Plaintiffs' claim for punitive damages.
This Brief is in support of the Defendants' Preliminary Objections.
11. STATEMENT OF QUESTIONS PRESENTED
A. SHOULD PLAINTIFFS' PRO SE COMPLAINT BE DISMISSED FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED?
(Suggested answer. Yes).
B. SHOULD PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES BE STRICKEN FOR
INSUFFICIENT SPECIFICITY AND FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED?
(Suggested answer: Yes).
2
Ill. ARGUMENT
issues arising in the separate suit against the Borough of Wormleysburg. In that suit, the
Defendants serve as counsel for the Borough. In addition, the Plaintiffs seek the removal of the
Defendants as counsel for the Borough. Pursuant to Rule 1028(a)(4), the Defendants filed a
Preliminary Objection in the nature of a demurrer.
When reviewing the grant or denial of a preliminary objection in the nature of a demurrer,
the allegations in the Complaint must be. regarded as true and accorded the inferences
reasonably deductible therefrom. National Building Leasing Inc v Bvler, 252 Pa. Super. 370,
372, 381 A.2d 963, 964 (1977). As such, if the plaintiff does set forth a cause of action on which
he is entitled to relief upon proof, the demurrer cannot be sustained. Conversely, a preliminary
objection in the nature of a demurrer is properly sustained where the Complaint has failed to set
forth a cause of action. Higgins v. Clearing Machine Corp., 344 Pa. Super. 325, 327, 496 A.2d
818, 819 (1985).
The Plaintiffs claim, in the case at bar, that Defendant Rettig, in the Moll v. Borough of
Wormlevsbu, rr matter, failed to telephone or respond in writing to the Plaintiffs request for a
'V-.eting with Attorney Rettig. Even accepting these allegations as true, the Plaintiffs' claims do
not state a cause of action. If the Molls' were aggrieved by Attorney Rettig's alleged failure to
telephone or respond in writing, then their remedy was to file a Motion to Compel Discovery or
to seek sanctions under Pa. R.Civ.P. 4019. Consequently, the Molls' Complaint regarding
discovery fails to state a claim upon which relief can be granted, and those allegations must be
dismissed.
3
The allegations by the Plaintiffs stem from their dissatisfaction regarding discovery
I
Coincidentally, the Plaintiffs did previously raise discovery concerns in the Borough of
Wormleysburg matter by filing a Motion to Compel the Borough to Correctly and Truthfully
Answer Plaintiffs' Second Set of Interrogatories at No. 97-6274. In response to that Motion, a
i
discovery conference was held before the Honorable J. Wesley Oler, Jr. on September 3, 1999.
On that date, Judge Oler, following a conference attended by the Molls and the undersigned,
issued an Order requiring the Borough to produce various documents within 30 days. The
Borough of Wormleysburg, in compliance with Judge Oler's Order, timely served its response to
the Plaintiffs' discovery requests. At that conference, Mr. Moll voiced complaints to the Court
that Attorney Rettig had not responded via telephone or in writing to his request. Judge Oler
advised Mr. Moll that the Court could not force an attorney to return his phone calls and
thoroughly explained the Rules of Civil Procedure regarding Requests for Admissions to the
Molls. Notwithstanding the same, the Plaintiffs have filed this frivolous suit.
The Plaintiffs also seek the removal of the Defendants as counsel for the Borough of
Wormleysburg. This is neither the proper forum for the same, nor does the Plaintiff enjoy
standing to request the Defendants' removal. The Defendants, as attorneys for the Borough of
Wormleysburg, owe no duty of care to the Plaintiffs, but only to their own client. The general
rule is that an attorney will be held liable only to his client. In the absence of special
circumstances, he will not be held liable to anyone else. The basis for this rule is the absence
of privity between the lawyer and one with whom he has no contract of employment. Smith v.
Griffiths. 327 Pa. Super. 418, 476 A.2d 22 (1984). As the court went on to note in Griffiths,
Ii
j when an attorney is representing a client who is involved in litigation, "the law is clear that the
I,
attorney ewes no duty of care to the adverse party, but only to his own client." Id. Again,
Plaintiffs' Complaint alleges facts which are legally insufficient'to the cause of action against the
Defendants.
4
_i
Finally, Plaintiffs' Complaint seeks the return of an "original" photocopy of a letter dated
September 15, 1984. The 'original" photocopy sought by the Plaintiffs was attached to the
Plaintiff's deposition transcript as Exhibit 1" in the Moll v Borough of Wormlevsburg matter.
The "original" photocopy was returned to the Plaintiffs by the undersigned on January 7, 2000.
Consequently, that issue is now moot.
B.
In Count I of the Plaintiffs' Complaint, Plaintiffs seemingly allege as a basis for punitive
damages that Attorney Rettig failed to return phone calls or provide responsive letters to a
request for a meeting. In Paragraph 19 of the Plaintiffs' Complaint, Plaintiffs set forth
conclusory allegations claiming that Attorney Rettig's actions were "deliberately false, perjury, a
violation of 18 Pa. C.S.A. 4904 relating to unsworn falsifications to authorities, a violation of the
Rules of Professional Conduct, is malicious intent and represents obdurate, vexatious, and bad
faith conduct." Based on these allegations, Plaintiffs allege that they are entitled to punitive
damages.
In accordance with Pennsylvania law, punitive damages may be awarded for conduct
that is outrageous, because of a defendant's evil motive or reckless indifference to the rights of
others. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d, 355 (1963). Specifically, a punitive
damages count must be dismissed if the Plaintiff has failed to plead facts which, if proven,
would establish that the Defendants' conduct was so outrageous as to warrant the recovery of
punitive damages. See, Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980). Mere
boilerplate allegations of outrageous conduct are insufficient to survive a legal challenge. Id.;
McDaniel v Merck Sharp 8 Dome, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987), appeal
denied, 520 Pa. 589, 551 A.2d 215 (1988). The Courts of this Commonwealth have consistently
5
held that punitive damages will be awarded only to punish conduct "that is so outrageous as to
rise to the level of intentional, willful or reckless conduct." See, Restatement (Second) of Torts,
§908(2); Abadie v. Riddle Memorial Hospital, 404 Pa. Super. 8, 15, 589 A.2d 1143, 1146
(1991); Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1098 (1985). The award of
punitive damages is appropriate to punish and deter only extreme behavior and is justifiable
only in rare instances subject to the strict control of the court. Martin v. Johns-Mansville Corp.,
supra. Ordinary negligence alone is not sufficient to sustain an award of punitive damages.
Chambers v. Montoomery, 411 Pa. 339, 192 A.2d 355 (1963); McDaniel v. Merck. Sharp &
Dome, supra.
Plaintiffs do not state any specific facts which, if proven, would establish the type of
outrageous behavior that would warrant the imposition of punitive damages against Defendants.
As retired Judge Dowling of the Dauphin County Court of Common Pleas once
observed:
The concept of punitive damages seems to be getting out of line.
We see it more and more alleged in the cases of ordinary or, at
the best, gross negligence. It is fast becoming a counterpart to
the ineffective counsel contention found in practically all post-
conviction hearing petitions. We wish to reiterate and emphasize
that it is reserved for the rare instances of extreme behavior.
Chambers v. Domino's Pizza. Inc., 3 D. & C. 4'", 483, 486 (1989).
The non-boilerplate factual allegations of the Complaint in the instant case fall short of
the type of extreme and outrageous behavior punishable by exemplary damages.
Consequently, Plaintiffs' requests for punitive damages against the Defendants must be
dismissed.
IV. CONCLUSION
For the foregoing reasons, the Defendants respectfully request that the Preliminary
Objections be sustained and the Plaintiffs' Complaint be dismissed with prejudice.
Respectfully submitted,
THOMAS, THOMAS & HAFER, LLP
o,
Kerfne Amp, Esquire
Attor ey I.D. # 41671
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7149
Date: January f$, 2000 Attorneys for Defendants
7
CERTIFICATE OF SERVICE
I do hereby certify that on this day I served a true and correct copy of the
foregoing document by first class mail, postage pre-paid, addressed to the following:
Sterling K. Moll
Esther M. Moll
518 North Second Street
Wormleysburg, PA 17043
Date: _ I I`7 2000
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1999-07472 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MOLL STERLING K ET AL
VS
RETTIG JEFFREY B ET AL
R. Thomas Kline
Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
RETTIG JEFFREY B
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT - EQUITY
On January 4th , 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 8.00
DEP. DAUPHIN CO 38.75
.00
73.75
01/04/2000
STERLING K. MOLL
So answers:
R!'Thomas Kline
Sheriff of Cumberland County
sworn and subscribed to before me
this ) -7 P day of
A. D.
(/- lC _
V„ Prothonotdr
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1999-07472 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MOLL STERLING K ET AL
VS
RETTIG JEFFREY B ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
RAPP KENNETH A
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT - EQUITY
On January 4th , 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing 6.00
Out of County .00
Surcharge 8.00
.00
.00
14.00
01/04/2000
STERLING K. MOLL
So answe s•
:?
R. Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed to before me
this d-7 S' day of
?2rnl A. D.
Prothonot9ry
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1999-07472 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MOLL STERLING K ET AL
VS
RETTIG JEFFREY B ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
THOMAS THOMAS AND HAFER
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT - EQUITY
On January 4th , 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing 6.00
Out of County .00
Surcharge 8.00
.00
.00
14.00
01/04/2000
STERLING K. MOLL
So answers:
R! Thomas Kline
Sheriff of Cumberland County
Sworn and subscribed to before me
this -a I IL- day of
0'uy A. D.
4 04
Prothonotary'
of fire of e S4Priff
Stan Jane Sin-der
Re;J I(stote Dc(xn.%
William T. Tully
Solicitor
Dauphin Count
Harrisburg. Pennsylvania 17101
ph:(717)255-2600 lin:(717)255-2389
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
MOLL STERLING K
vs
• RAPP KENNETH A
Sheriff's Return
No. 2551-T - - -1999
OTHER COUNTY NO. 99-7472
Ralph G. McAllister
chiel-I epul)
Michael W. Rinehart
Assistant Chiel Ikpm)'
AND NOW: December 21, 1999 at 9:0OAM served the within
COMPLAINT
THOMAS THOMAS G HAFER
to APRIL STONEROAD-RECEPT
upon
by personally handing
1 true attested copy(ies)
of the original COMPLAINT and making I:nown
to him/her the contents thereof at 305 NORTH FRONT STREET
6TH FLOOR
HARRISBURG, PA 17113-0000
Sworn and subscribed to
J_
1lX/ iv 22ND day DE?CEMBER, 1999
before //m??e?jt?hiiss
3?-}J 6 . J /
f.(
PROTHONOTARY
So Answers,
?lexv -
Sheri f/ of Dauphin Count , Pa.
By -A
Deputy She ff
Sheriff's Costs: $38.75 PD 12/16/1999
RCPT NO 131440
RM
In The Court of Common Pleas of Cumberland County, Pennsylvania
Sterling K. Moll, at. al.
VS.
Jeffrey B. Rettig, et. al.
Serve: Jeffrey B. Rettig No. 99-7472 Civ
Now, 12/15/99
hereby deputize the Sheriff of
19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff. ?M
Sheriff ofCumbariand County, PA
Affidavit of Service
Now,
within
upon
at
by handing to -
a
and made known to
So answers,
the contents thereof.
Sheriff of
Sworn and subscribed before
me this _ day of 19
19_, at o'clock _ M. served the
copy of the original
COSTS
SERVICE $
MILEAGE
AFFIDAVIT
County, PA
In The Court of Common Pleas of Cumberland County, Pennsylvania
Sterling K. Moll, et. al.
VS.
Jeffrey B. Rettig, et. al.
Serve: Kenneth A. Rapp No. 99-7472 Civil
Now, 12/15/99 , 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
copy of the original
the contents thereof.
So answers,
Sheriff of
Sworn and subscribed before
me this _ day of 19
COSTS
SERVICE _
MILEAGE _
AFFIDAVIT
County, PA
19 , at o'clock M. served the
i': '..r... -. Ze:YSL
In The Court of Common Pleas of Cumberland County, Pennsylvania
Sterling K. Moll, et. al.
VS.
Jeffrey B. Rettig, et. al
Serve: Thomas, Thomas & Hafer
Now,12/15/99
hereby deputize the Sheriff of
19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to _
a
and made known to
copy of the original
the contents thereof.
So answers,
Sheriff of
COSTS
Sworn and subscribed before SERVICE
me this _ day of , 19_ MILEAGE _
AFFIDAVIT
19_, at o'clock M. served the
No. 99-7472 Civil
County, PA
i
i
i
i
o f fire of t4e jk$-4Exr ff
Man Jane Sncder
Real lisuno Ikl+ulp
William T. Tully
Solicitor
Dauphin County
Harrisburg. Pennsyh:mia 17101
ph: (717) 255-2!x10 lies: (717) 255.2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania MOLL STERLING K
County of Dauphin RAPP KENNETH A vs
Sheriff's Return
Ralph G. McAllister
Chicf I kputy
Michael W. Rinehart
Assisomt Chief Ikputy
No. 2551-T - - -1999
OTHER COUNTY NO. 99-7472
AND NOW: December 21, 1999 at 9:OOAM served the within
COMPLAINT upon
RETTIG JEFFREY B
by personally handing
to APRIL STONEROAD-RECEPT 1 true attested co
py(ies)
of the original COMPLAINT and making known
to him/her the contents thereof at 305 NORTH FRONT ST
6TH FLOOR
HARRISBURG, PA 17113-0000
Sworn and subscribed to
before me this 22ND day of DECEMBER, 1999
1
u ail I//
PROTHONOTARY
So Answers,
?lell; -
Sherif of Dauphin County Pa.
By
44edputy She 'ff
Sheriff's costs: $38.75 PD 12/16/1999
RCPT NO 131440
RM
cipf f ice laf t4r CS42rfirf
Man Jane Snider
Rc,d Estate I k)wl)'
William T. Tully
Solicitor
Ralph G. McAllister
Chicl' I kputc
Michael W. Rinehart
Assislanl Cliicl'IX:puh
Dauphin Counts
Harrisburg. Pennsylvania 17101
ph: (717) 253-2660 tux: (717) 235-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
County of Dauphin
MOLL STERLING K
vs
• RAPP KENNETH A
Sheriff's Return
No. 2551-T - - -1999
OTHER COUNTY NO. 99-7472
AND NOW: December 21, 1999 at 9:OOAM served the within
COMPLAINT
RAPP KENNETH A
to APRIL STONEROAD-RECEPTIONIST
upon
by personally handing
1 true attested copy(ies)
of the original COMPLAINT and making known
to him/her the contents thereof at 305 NORTH FRONT STREET
6TH FLOOR
HARRISBURG, PA 17113-0000
Sworn and subscribed to
before me this 22ND day of DECEMBER, 1999
VLF ? ?1
PROTHONOTARY
So Answers,
?lel;?
Sheriff of Dauphin County, Pa.
By
Deputy Sh r'ff
Sheriff's Costs: $38.75 PD 12/16/1999
RCPT NO 131440
RM
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THOMAS, THOMAS & HAFER
Jeffrey B. Rettig, Esquire
I.D. Number: 19616
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108.0999
(717) 255.7639
Attorney for Defendant
STERLING W. MOLL and
ESTHER M. MOLL,
Plaintiffs
V.
BOROUGH OF WORMLEYSBURG,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-6274 CIVIL
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter my appearance for Defendant, Borough of Wormleysburg, in the above-
captioned case.
THOMAS, THOMAS & HAFER
e frey? Es it
j
y
/ D. Number: 1961
305 North Front Street
P.O. Box 999 C-) Ei
Harrisburg, PA 17101
(717 255-7639
Dated: 1Z/
L w '
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CERTIFICATE OF SERVICE
1. Carol A. Landis, a paralegal for the law firm Thomas, Thomas & Hafer, hereby state g?
that a true and correct copy of the foregoing Entry of Appearance was served upon all counsel of s
record by first class United States mail, postage prepaid, addressed as follows, on the date set forth
below:
By First Class U.S. Mail: r
Sterling K. Moll
Esther M. Moll
518 N. 2nd St.
Wormleysburg, PA 17043
THOMAS, THOMAS & HAFER
?CtiL?'Z '?• ?dl?Gl?iy
Carol A. Landis
Dated: Ia./3197
THOMAS, THOMAS & HAFER, LLP
ATTORNEYS AT LAW
IOSEPII P. HAFER
JAMES K. TIIOMIAS. 11
ROBERTSON D. TAYLOR
JEFFREY it. RE'ITIG
PETER J. CURRY
R. BURKE McLEMORE. JR.
EDWARD It. JORDAN. JR.
C. KENT PRICE
RANDALL G. GALE
DAVID L. SCIIWAI.M
PETER 1. SPEAKER
DOUGLAS B. MARCELLO
PAUL J. DELLASEGA
OFCOUNSEL
JAMES K. THOMAS
coo Py
305 NORTH FRONT STREET
SIXTII FLOOR
P.O. BOX 999
HARRISBURG. PA 17108
(717) 217.7100
FAX (717)217.71115
WRITER'S DIRECT DIAL NUAI HER
717/237.7149
kar(a.llhlaw.com
September 28, 1999
TIMOTHY I. MARK
DANIELL GALLAGHER
ROBERT A. TAYLOR
SARAII W. AROSELL
EUGENE N. McIIUGII
ST'EPBEN E. OIiDULDIG
KAREN S. COATES
GARY" r. LATIIROP
TODD It. NARVOL
JAMES J. DODD-O
KENNETII A. RAPP
KEVIN C. McNANIARA
BROOKS R. FOLAND
JOHN FLOUNLACKER
JOHN M1. POP] LOCK
MICHELE: J.THORP
Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Re: Moll v. Borough of Wormleysburg
No. 97-6274
Dear Sir or Madam:
Enclosed for filing please find the original and one copy of a Certificate of Service
of Discovery Responses for the above captioned matter. Would you please time stamp the
extra copy of the document and return it to my office in the enclosed self-addressed stamped
envelope.
Thank you for your attention to matter.
Very truly yours,
Thomas, Thomas & Hafer, LLP
KAR/djs Kenneth A. Rapp
Enclosures
cc: Mr. and Mrs. erling W. Moll (w/enc)
:34939.3
LBIIIGII VALLEY OFFICE: 12 E. MARKET STREET. P.O. BOX 1172, BETHLEHEM. PA 18016 (Gil) 868-I675 FAX (610) 868-1702
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20. Defendant Incorporates by reference the response in subparagraph (18)
above.
21. Defendant incorporates by reference the response in subparagraph (18)
above. It is further denied that the response is violative of 18 Pa. C.S.A. §4904.
22. It is specifically denied that the response to Interrogatory No. 22 is false
and/or inadequate. Any and all actions of the Borough are contained in the Borough of
Wormleysburg's records.
23. Denied as stated. The response to Interrogatory No. 23 is correct and
adequate.
24-27. Denied. The Defendant's responses to Interrogatory Nos. 24, 25, 26 and
27 are valid. Plaintiffs' Interrogatories seek information irrelevant to the subject litigation.
28. Defendant incorporates by reference the response in subparagraph (13)
above.
29. Denied. Defendant's objections to Interrogatory No. 29 are valid.
3. Admitted.
4. Denied. At all times relevant hereto, Defendant has provided correct, complete
and proper answers and/or objections to the Plaintiffs' pleadings and discovery requests in
accordance with the Pennsylvania Rules of Civil Procedure.
5. Admitted.
6. Denied. Defendant's attorney has attempted to timely respond to Plaintiff's
inquiries.
7. Denied. Defendant has acted in accordance with the applicable local rules and
the Pennsylvania Rules of Civil Procedure at all times relevant hereto.
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(J O U
STERLING K. MOLL and
ESTHER M. MOLL,
Plaintiffs
v.
JEFFREY B. RETTIG, KENNETH
A. RAPP, and THOMAS, THOMAS
& HAFER,
Defendants
AND NOW,- this _ day of
IN THE COURT OF COMMON PLEAS
CUMBERLAND CTY., PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 99-7472
JURY TRIAL DEMANDED
ORDER
2000, upon consideration of the
Defendants' Preliminary Objections, it is hereby ordered and decreed that the Preliminary
objections are GRANTED and the Plaintiffs' Complaint is dismissed with prejudice.
BY THE COURT:
J.
:82443.1
Kenneth A. Rapp, Esquire
Attorney I. D. # 41671
Thomas, Thomas & Hafer, LLP
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7149
Attorneys for Defendants
STERLING K. MOLL and
ESTHER M. MOLL,
Plaintiffs
V.
JEFFREY B. RETTIG, KENNETH
A. RAPP, and THOMAS, THOMAS
& HAFER,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND CTY., PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 99-7472
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANTS
AND NOW, comes the Defendants, Jeffrey B. Rettig, Kenneth A. Rapp, and Thomas,
Thomas & Hafer, and preliminarily object to the Plaintiffs' Complaint as follows:
1. On December 14, 1999, the Plaintiffs, Sterling K. Moll and Esther M. Moll
(hereinafter "Plaintiffs") filed a Complaint against Defendants, Jeffrey B. Rettig, Esquire,
Kenneth A. Rapp, Esquire and Thomas, Thomas & Hafer (hereinafter "Defendants") in the Court
of Common Pleas, Cumberland County, Pennsylvania.
2. Plaintiffs' Complaint targets the Defendants in their capacity as counsel for the
Borough of Wormleysburg in a separate action filed by the Plaintiffs in Moll, et ux. v. Borough of
Wormlevsburr , docketed at No. 97-6274 in Cumberland County.
3. Plaintiffs' Complaint generally seeks punitive damages against the Defendants,
the return of a handwritten carbon copy of a letter of Plaintiff Sterling Moll produced during Mr.
Moll's deposition in the above-referenced action and the removal of the Defendants as counsel
for the Borough.
4. Plaintiffs' Complaint alleges that in the case of Moll et ux v. Borough of
Wormleysburo, No. 97-6274, Defendant Rettig, as counsel for the Borough of Wormleysburg,
failed to telephone or respond in writing to the Plaintiffs' request for a meeting with Defendant to
discuss Plaintiffs' Requests for Admissions, Interrogatories and Plaintiffs' statements to the
Borough's insurance carrier. [Complaint, M16 and 18].
5. The allegations by the Plaintiffs in their Complaint stem from discovery concerns
arising in the suit against the Borough of Wormleysburg at No. 97-6274. [Complaint, 1M14-18,
24-28].
6. The Plaintiffs' discovery concerns were previously the subject of the Plaintiffs'
Motion to Compel Defendant (Borough of Wormleysburg) to Correctly and Truthfully Answer
Plaintiffs' Second Set of Interrogatories filed at No. 97-6274.
7. In response to the aforesaid Motion to Compel, a discovery conference was held
before the Honorable J. Wesley Oler, Jr. on September 3, 1999.
8. On that date, Judge Oler, following a conference attended by Plaintiffs and
Defendant Kenneth A. Rapp, issued an order requiring the Borough to produce various
documents within thirty (30) days. (A true and correct copy of Judge Oler's Order dated
September 3, 1999 is attached hereto, made a part hereof and marked Exhibit "A").
9. On September 28, 1999, the Borough of Wormleysburg, in compliance with
Judge Oler's Order, timely served its Response to Plaintiffs' Discovery Requests. (A copy of the
2
Borough's response (without exhibits) is attached hereto, made a part hereof and marked
Exhibit "B").
10. To the extent that the Plaintiffs seek the removal of the Defendants as counsel
for the Borough of Wormleysburg, this is neither the proper forum for the same, nor does the
Plaintiff enjoy standing to request the Defendants' removal.
11. To the extent that Plaintiffs seek the return of an "original" photocopy of a letter
dated September 15, 1984, the undersigned returned the "original" to the Plaintiffs on January
7, 2000.' (A copy of the transmittal letter enclosing the same is attached hereto, made a part
hereto and marked as Exhibit "C").
12. The Defendants, as attorneys for the Borough of Wormleysburg, owe no duty of
care to the Plaintiffs, but only to their own client.
13. The Plaintiffs' Complaint alleges facts which are legally insufficient to state a
cause of action against the Defendants.
WHEREFORE, the Defendants demur to the Plaintiffs' Complaint, and respectfully
request that this Honorable Court sustain Defendants' Preliminary Objections to the Complaint
on the grounds of legal insufficiency.
IL MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES
14. In Count I of the Plaintiffs' Complaint, Plaintiffs seemingly allege as a basis for
punitive damages that Defendant Rettig failed to return phone calls or provide responsive letters
to a request for a meeting. [Complaint, 118).
15. In Paragraph 19 of the Plaintiffs' Complaint, Plaintiffs set forth conclusory
allegations claiming that Defendant Rettig's actions were "deliberately false, perjury, a violation
3
-1
of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities, a violation of the Rules of
Professional Conduct, is malicious intent and represents obdurate, vexatious and bad faith
conduct."
16. Additionally, Plaintiffs' prayer for relief in Count I includes a request for punitive
damages.
17. Plaintiffs' Complaint fails to allege any facts that Defendants' conduct was
intentional, undertaken with evil motive, or with reckless indifference to the rights of the
Plaintiffs.
18. Plaintiffs' Complaint fails to state a claim for punitive damages.
WHEREFORE, Defendants respectfully request that the allegations and prayer for
punitive damages be stricken from the Plaintiffs' Complaint in that there are insufficient facts to
support the same plead in the Complaint.
Respectfully submitted,
& HAFER, LLP
KerSne A. Rapp, Esquire
Attor ey I.D. # 41671
305 North Front Street
P. O. Box 999
Harrisburg, PA 17108-0999
(717) 237-7149
Date: January-7, 2000 Attorneys for Defendants
' Please note that the "original" copy of the September 25, 1984 letter sought by the Plaintiffs was
attached to the Plaintiff's deposition transcript as Exhibit No. 1. It has now been returned to the Plaintiffs,
thus, the issue is moot.
4
Exhibit A
J
STERLING K. MOLL and COURT IN THE ESTHE COUNTY, PENNSYLVANIA
ESTHER M hl. MOLL, CUMBERLAND
Plaintiff
V CIVIL ACTION - LAW
BOROUGH OF WORMLEYSBURG, :
Defendant : NO. 97-6274 CIVIL TERM
IN RE: DISCOVERY CONFERENCE
ORDER OF COURT
AND NOW, this 3rd day of September, 1999,
upon consideration of Plaintiffs' Motion To Compel Defendant
To Correctly and Truthfully Answer Plaintiffs' Second Set of
Interrogatories and of The Reply of Defendant Borough of
Wormleysburg to Plaintiffs' Motion To Compel Defendant To
Correctly and Truthfully Answer Plaintiffs' Second Set of
Interrogatories, and following a conference in the chambers
of the undersigned judge in which the Plaintiffs, Sterling
K. Moll and Esther M. Moll, were present representing
themselves, and Defendant Borough of Wormleysburg was
represented by Kenneth A. Rapp, Esquire, standing in for
Jeffrey B. Rettig, Esquire, and Plaintiffs having indicated
that the information which they are requesting at this time
is (1) letters of residents in reply to letter concerning
storm water survey by Borough Secretary Brockman in 1973,
(2) final report of 1984 storm water project by Borough
Engineer Robert Rowland in or about August 1985, (3) letter
by Blaine stating he would install curbs and sidewalks at
the Geissler-Blaine subdivision (4) letters and reports
concerning needs for storm water drainage to borough by
borough engineer at the Geissler-Blaine subdivision, (5)
photos by Berresford and borough insurance reports on
current property damages, (6) admittance of council meetings
hand copied by Sterling Moll, and (7) inspection of reports
of 1995 reconstruction of the 500 block of North Third
Street, it is ordered and directed as follows:
1. The 1973 letters to Borough Secretary
Brockman appearing to the Court to be too distant in time
for purposes of proper discovery in this matter, the Motion
To Compel is denied with respect to those items, without
prejudice to any request of Plaintiffs to seek such
information under the Pennsylvania Right To Know Statute.
2. Defendant is directed within thirty days
of today's date to furnish any final report in its
possession of the 1984 storm water project by the Borough
Engineer Robert Rowland, allegedly submitted in or about
August, 1985.
3. The letter by Blaine stating that he
would install curbs and sidewalks at the Geissler-Blaine
subdivision having apparently been written around 1978 or
1979 and appearing to the Court to be too distant in time
for purposes of proper discovery in this case, the Motion To
Compel in that regard is denied, without prejudice to any
141.: _ _..? - - JM1 .•?'i
request of Plaintiffs to seek such information under the
Pennsylvania Right To Know statute.
4. Within thirty days of the date of this
Order, Defendant shall furnish to Plaintiffs any letters and
reports from the borough engineer regarding storm water
drainage in connection with the Geissler-Blaine subdivision
project, to the extent that the borough possesses such
items.
5. Within thirty days of the date of this
Order, Defendant shall supply copies to Plaintiffs of any
photographs taken by ,Berresford" and those portions of
insurance reports which describe property damage from water
in the vicinity of Plaintiffs' home.
6. With respect to the admittance of council
meetings hand copied by Sterling Moll, and it appearing that
Mr. Moll copied the minutes of certain council meetings,
Plaintiffs are referred to the request-for-admissions
procedure in the civil procedural rules.
7. Within thirty days of today's date,
Defendant shall make available for inspection by Plaintiffs
any reports within the borough's possession regarding the
1995 reconstruction of the 500 block of North Third Street
as those reports relate to storm water control.
No other relief is granted at this time to
either party.
Attached to this Order is a list of the items
which Plaintiffs presented to the Court at the conference as
the items which they are requesting at this time.
1Nr. and Mrs. Sterling K. Moll
V 518 North Second Street
Wormleysburg, PA 17043
Plaintiffs, Pro se
Kenneth A. Rapp, Esquire
Thomas, Thomas & Hafer
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendant
:srs
By the Court,
G '? 7 4 Cyr, s?'„ n
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THOMAS, THOMAS & HAFER, LLP
Kenneth A. Rapp, Esquire
Identification Number: 41671
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
717/237-7149
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
STERLING W. MOLL and
ESTHER M. MOLL,
Plaintiffs
V. NO. 97-6274
BOROUGH OF WORMLEYSBURG,
Defendant
BOROUGH OF WORMLEYSBURG'S RESPONSE TO
PLAINTIFFS' DISCOVERY REQUESTS AND ORDER OF
JUDGE OILER DATED SEPTEMBER 3,1999
2. The Borough does not have in its possession a final report of the 1984 storm
water project by engineer Robert D. Roland. P.E. Attached hereto and marked as Exhibit "A" is
a letter dated August 29, 1985 from Mr. Roland to the Borough Council.
4. Attached hereto and marked as Exhibit "B" are letters dated October 28, 1980 of
Jerry R. Duffle, Esquire and January 27, 1981 of Robert D. Roland, P.E. with respect to the
Geissler-Blaine subdivision project.
5. Attached hereto and marked as Exhibit "C" are copies of photographs (4) dated
June 2,1997 taken by Gary Berresford. The Borough does not have in its possession any
insurance reports which describe property damage from water in the vicinity of the Plaintiffs'
Z•
home.
7. Attached hereto and marked as Exhibit "D" is a copy of a Site Visit Report dated
October 18, 1995 of Thomas M. Harbert, P.E., of Benatec Associates with regard to the 1995
reconstruction of the 500 block of North Third Street.
THOMAS, THOMAS & HAFER, LLP
KennellfK-Kapp, Esquire
Attorney I.D. # 41671
305 North Front Street
P. 0. Box 999
Harrisburg, PA 17108-0999
(717) 237-7149
Attorneys for Defendant
Date: September 28, 1999
:72838.1
Exhibit C
TiIOMAS, THOMAS & HAFER, LLP
ATTORNEYS AT LAW
JOSLPR P. HAFER
LAMES K. TDOMAS. 11
ROBERTSON D. TAYLOR
1LFFREY R. RETTIG
111:1 ER J. CURRY
R. BURKE McLEMORL. JR.
EDWARD It. JORDAN. IR.
C. KENT PRICE
RANDALL G. GALE
DAVID I.. SCHWALM
PETIiR J. SI'F:AKER
DOUGLAS B. AIARCLI.10
PAUL J. 01 LLASEGA
OF COUNSEL
JAMES K. THOMAS
IISIO1IY 1. MARK
AGIILR
DANIEL
J. GA
*,NORTH FRONT STREET -
ROItIEHr T A A. T.\Y LOH
SARAII \V. AROSELL
SIXTH FLOOR 1 UOENIi N. M01UGJI
BOX 944
P
O 511.1 HE.%* li. GEDULDIG
*
.
. KARI
N S. COATES
HARRISBURG. PA 17108 GARY T. LATHROP
FOI)D D. NARVOL
(717) 237-71111) LAM I'S J. DODD•O
_ KENNi: Fit A. RAPP
FAX (717) 237.7111$ KI.VIN C. McNAMARA
BROOKS R. FOLAND
WRITER'S DIRECT DIAL NUMBER JOIN F'LOUNLACKER
JOUN M. POPILOCK
(717) 237-7149 MICHELE J. THORP
kar(altthlaw.com
January 7, 2000
Sterling K. Moll
518 North Second Street
Wormleysburg, PA 17043
RE: Moll v. Borough of Wormleysburg
Dear Mr. Moll:
I am returning herein the "original" photocopy of a letter dated September 25,
1984 from you to Mr. Theodore Adler, Esquire. The enclosed had been attached to your
deposition transcript as Exhibit No. 1.
Very truly yours,
& HAFER, LLP
A. Rapp
KAR:djs
Enclosure
:82381.1
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LEI IIGII VALLEY OFFICE: 12 E. MARKET STREET. P.O. BOX 1171. BETHLEHEM. PA 151116 (61) 8(,N- 1675 FAX (fill) 86S- 1702
CERTIFICATE OF SERVICE
I do hereby certify that on this day I served a true and correct copy of the
foregoing document by first class mail, postage pre-paid, addressed to the following:
Sterling K. Moll
Esther M. Moll
518 North Second Street
Wormleysburg, PA 17043
Date: I 7 -2000
:81981.1
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE:
(entire caption must be stated in full)
STERLING W. MOLL and ESTHER M. MOLL,
vs.
JEFFREY B. RETTIG, KENNETH A. RAPP,
and THOMAS, THOMAS & HAFER
(Plaintiff)
(Defendant)
vs.
No. 99-7472 Givil Q& Ii t
1. State matter to be argued (i.e., plaintiffs motion for new trial,
defendant's demurrer to complaint, etc.):
Preliminary Objections of Defendants
2. Identify counsel who will argue case:
(a) for plaintiff: Plaintiffs Sterling Moll and Esther Moll, pro se
Address: 518 North Second Street, Wormleysburg, PA 17043
(b) for defendant: Kenneth A. Rapp, Esquire, Thomas, Thomas & Hafer,
Address: 305 N. Front St., P. O. Box 999, Hbg., PA 17108
3. 1 will notify all parties in writing within two days that this case has been listed
for argument.
4. Argument Court Date: March 1, 2000.
Dated: January 18, 2000
*paa fendants Jeffrey B. Rettig, Kenneth
homas, Thomas & Ha fer
:70386.1
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STERLING K. MOLL : IN THE COURT OF COMMON PLEAS OF
and ESTHER M. MOLL, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
: CIVIL ACTION - LAW
JEFFREY B. RETTIG,
KENNETH A. RAPP, and
THOMAS, THOMAS &
HAFER,
Defendants
NO. 99-7472 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 14 day of June, 2000, upon consideration of Defendants'
preliminary objections to Plaintiffs' complaint in the nature of a demurrer, and for
the reasons stated in the accompanying opinion, the preliminary objections are
sustained and Plaintiffs' complaint is dismissed.
BY THE COURT,
Wesley Oler,di, .
Sterling K. Moll
Esther M. Moll -?
518 North Second Street (o ??o d f
Wormleysburg, PA 17043
Plaintiffs, Pro Se `J
._Q Z=
Kenneth A. Rapp, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendants
:rc
STERLING K. MOLL
and ESTHER M. MOLL,
Plaintiffs
V.
JEFFREY B. RETTIG,
KENNETH A. RAPP, and :
THOMAS, THOMAS & :
HAFER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
N0.99-7472 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J., June/4, 2000.
In this civil case, Plaintiffs have filed a pro se complaint against a law firm
and two of its members. The complaint arises out of Defendants' representation of
a defendant in another suit brought by Plaintiffs.
Plaintiffs' present complaint contains two counts. One count alleges that
one of the individual Defendants made a false statement in an answer to a
discovery motion in the separate suit. The allegedly false statement was to the
effect that an attempt had been made to cooperate with Plaintiffs in providing
discovery. In this count, Plaintiffs request relief in the form of a monetary award,
including punitive damages, in excess of $100,000.00, and removal of Defendants
as counsel in the other suit.
The second count alleges that a certain letter which Plaintiffs provided
during a 1998 deposition in the other suit was exchanged for a photocopy without
their permission. In this count, Plaintiffs request relief in the form of a return of
the item they supplied.
For disposition at this time are preliminary objections filed by Defendants
to Plaintiffs' complaint. The preliminary objections seek dismissal of both counts
on grounds of legal insufficiency, and in the alternative a striking of the claim for
punitive damages in the First count.
Argument was held on Defendants' preliminary objections on March 1,
2000. For the reasons stated in this opinion, the preliminary objections in the
nature of a demurrer will be sustained.
STATRMFNT OF -A TS• PRO MUgAI FIISTORI
On December 14, 1999, Sterling K. Moll and Esther M. Moll, Plaintiffs,
filed a handwritten complaint against Jeffrey B. Rettig, Esquire, Kenneth A. Rapp,
Esquire, and Thomas, Thomas & Hafer, Defendants. According to Plaintiffs'
complaint, Defendants represented (and still represent) the Borough of
Wormleysburg in another suit in this court filed by Plaintiffs and docketed at No.
97-6274 Civil Term.
Plaintiffs allege that in this other action they filed a motion to compel
discovery.2 In paragraph six of the discovery motion, according to Plaintiffs,
Plaintiffs averred that, when they "wrote to [Defendants] several times concerning
Admissions, Interrogatories [and] copies of Plaintiff Sterling Moll's statements to
... insurance carriers, [Defendants] failed to Answer. i3 The present complaint
further alleges that Defendant Rettig denied paragraph six in a response to the
discovery motion and stated that "[the Borough's attorney] attempted to timely
respond to Plaintiff's inquiries .,,4
In their complaint in the present action, Plaintiffs allege that, in fact, they
had "received no phone calls or letters of response to any request for a meeting
with [Defendants] .,,5 They contend that the responsive statement was
"deliberately false, perjury, a violation of 18 Pa. C.S.A. §4904 relating to unsworn
falsification to authorities, a violation of the Rules of Professional Conduct, [was]
i Plaintiffs' complaint, paragraphs 5, 7-9.
2 Plaintiffs' complaint, paragraphs 5, 14.
3 Plaintiffs' complaint, paragraph 16 and exhibit 3.
4 Plaintiffs' complaint, paragraph 17 and exhibit 4.
5 Plaintiffs' complaint, paragraph 18.
2
obdurate, vexatious and bad faith conduct, ... brought great harm to Plaintiffs,
...delayed the due process of the case docketed at 97-6274, and caused needless
action on the part of the Plaintiffs and ... [the] Court .i6 In Count 1 of the present
complaint, Plaintiffs contend that the facts alleged warrant punitive damages and
the removal of Defendants from representation of their client in the separate
action.
Plaintiffs allege further in the present case that, in 1998, in the course of a
deposition in the separate case, Plaintiffs provided a 1984 letter, written by them
to their former attorney, to Defendant Rettig for photocopying. According to
Plaintiffs, a copy of the document (instead of the actual specimen they had
supplied) was returned to them.8 In count II of the present complaint, Plaintiffs
demand a return of the physical specimen that they supplied.9
On January 11, 2000, Defendants filed preliminary objections to Plaintiffs'
complaint, in the form of a motion to dismiss each count of the complaint for legal
insufficiency of a pleading, and a motion to strike Plaintiffs' claim for punitive
damages in the first count. With specific reference to the document demanded by
Plaintiffs, Defendants state that the item in question was itself a (carbon) copy of
the letter written by Plaintiffs10 and that the item was made an exhibit in the
deposition.) l However, Defendants further state that the item was retrieved and
6 Plaintiffs' Complaint, Paragraph 19.
7 Plaintiffs' complaint, paragraphs 24-28.
8 Plaintiffs' complaint, paragraphs 26-27.
9 Plaintiffs' complaint, count II, claim for relief.
10 Defendants' preliminary objections, paragraph 3.
11 Defendants' preliminary objections, paragraph I I n.1.
3
has been returned to Plaintiffs.'' Plaintiffs concede that the item was itself only a
) 1
copy 13 and that it has been returned to them.
nBc'[? f55
statement of Law
Preliminary objections in the nature of a demurrer. According to
Pennsylvania Rule of Civil Procedure 1028(a)(4), preliminary objections may be
filed by any party on the grounds of legal insufficiency of a pleading. When
reviewing the grant or denial of a preliminary objection in the nature of a
demurrer, the allegations in the complaint must be regarded as true and accorded
the inferences reasonably deductible therefrom. National Building Leasing, Inc. v.
Byler, 252 Pa. Super. 370, 372, 831 A.2d 963, 964 (1977). As such, if the plaintiff
does set forth a cause of action on which he or she is entitled to relief upon proof,
the demurrer cannot be sustained. Conversely, a preliminary objection in the
nature of a demurrer is properly sustained where the complaint has failed to set
forth a cause of action. Higgins v. Clearing Machine Corp., 344 Pa. Super. 325,
327, 496 A.2d 818, 819 (1985).
In ruling on a preliminary objection on the ground of legal insufficiency, a
court may consider only those factual matters disclosed in the record. Muia v.
Fazzini, 416 Pa. 377, 205 A.2d 856 (1965).
Conduct and statements of counsel in litigation. With respect to an
attorney's cooperation with an opposing party in discovery matters in a case, it
may be noted that, as a general rule, "the law is clear that [an] attorney owes no
duty of care to the adverse party, but only to his own client." Smith v. Griffiths,
327 Pa. Super. 418, 476 A.2d 22 (1984). In addition, statements made by counsel
on behalf of a client during the course of litigation are the subject of a broad
12 Defendants' preliminary objections, paragraph 11.
13 Plaintiffs' "Response to Preliminary Objections of Defendants," paragraph 3.
1a Plaintiffs' "Response to Preliminary Objections of Defendants," paragraph 11.
4
.1?.. _?i
privilege, based upon public policy. ld. This privilege is part of a general doctrine
applicable to
communications pertinent to any stage of judicial proceedings
... [and encompasses) statements made by a party, a witness,
counsel, or a judge ... when made in pleadings, open court, or
even in less formal circumstances, such as preliminary
conferences, negotiations, and routine correspondence
exchanges between counsel in the furtherance of their clients'
interests.... A judge must be free to independently administer
the law; parties must be afforded freedom of access to the
courts; witnesses must be encouraged to give complete and
unintimidated testimony; and counsel must be enabled to best
represent their clients interests, without fear of reprisal ....
Pelagatti v. Cohen, 370 Pa. Super. 422, 436-37, 536 A.2d 1337, 1344 (1987).
"The courts have appropriate internal sanctions ..., such as perjury and
contempt proceedings, and are capable of utilizing these sanctions to ensure
protection of the public good, thereby obviating the need for the threat of civil
damages liability" in the case of improper statements in pleadings and other
filings. Pelagatti v. Cohen, 370 Pa. Super. 422, 437, 536 A.2d 1337, 1344 (1987).
Where conduct in the course of litigation can be characterized as dilatory,
obdurate or vexatious, a sanction in the form of counsel fees is also available
within the cases at its conclusion upon petition. 16
Although the privilege under discussion is most frequently associated with
defamation suits, its application is not limited to actions involving that tort. See
Clodgo v. Bowman, 411 Pa. Super. 267, 273, 601 A.2d 342, 345, appeal granted,
532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted,
533 Pa. 352, 625 A.2d 612 (1993).
15 See Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §2503(7); Verholek v.
Verholek, 741 A.2d 792 (Pa. Superior Ct. 1999).
16 Miller v. Potteiger, No. 3591 Civil 1990 (Cumberland Co. March 13, 1995).
5
Stated simply, not every offense to the sensibilities of a party in a lawsuit
can be redressed in an independent legal action. Some perceived harm is damnum
absque irjuria-"[l]oss, hurt or harm without injury in the legal sense; that is,
without such breach of duty as is redressible by a legal action." Black's Law
Dictionary 393 (6th ed. 1990). It is frequently the case, where communications in
a lawsuit are concerned, that "[t]he inconvenience of the individual must yield to a
rule for the good of the general public." Smith v. Griffiths, 327 Pa. Super. 418,
423, 476 A.2d 22, 24 (1984).
"Whether [an action can be sustained in this context] is a question of law
for the court." Smith v. Grij?ths, 327 Pa. Super. 418, 423, 476 A.2d 22, 25 (1984).
Where it can not, a preliminary objection in the nature of a demurrer is
appropriately granted. 17
De minimis doctrine. The de minimis doctrine is expressed in "the maxim
`de minimis non curat lex,' which means that the law will not concern itself with
trifles." Yeakel v. Driscoll, 321 Pa. Super. 238, 243, 467 A.2d 1342, 1344 (1983).
It is appropriately employed in civil cases where a perceived violation of one's
rights is of virtually no significance. Id. (two-inch encroachment of fire wall).
Application of Law to Facts
After a careful review of the record in the present case, the court is of the
view that Defendants' preliminary objections in the nature of a demurrer to
Plaintiffs' complaint must be granted. With regard to count 1, based upon an
alleged failure to cooperate with Plaintiffs in providing discovery in a separate
case, and an alleged misstatement in a response to Plaintiffs' discovery motion as
to such cooperation, the principles recited above lead to the conclusion that the
claim of plaintiffs can not be sustained in the present, independent action.
With regard to count 11, based upon an alleged substitution, again in the
separate case, of a photocopy for a carbon copy of a certain letter written by
Plaintiffs to a former attorney in 1984, the matter appears to fall within the scope
17 Smith v. Griffiths, 327 Pa. Super. 418, 476 A.2d 22 (1984).
6
of the de minimis doctrine, particularly in light of the fact that the carbon copy has
been returned to Plaintiffs. For these reasons, the following order will be entered:
ORDIRR OE COURT
AND NOW, this/44y of June, 2000, upon consideration of Defendants'
preliminary objections to Plaintiffs' complaint in the nature of a demurrer, and for
the reasons stated in the accompanying opinion, the preliminary objections are
sustained and Plaintiffs' complaint is dismissed.
BY THE COURT,
s/ J Wesley Olm Jr.
J. Wesley Oler, Jr., J.
Sterling K. Moll
Esther M. Moll
518 North Second Street
Wormleysburg, PA 17043
Plaintiffs, Pro Se
Kenneth A. Rapp, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendants
:rc
7