HomeMy WebLinkAbout99-7472 CivilSTERLING K. MOLL
and ESTHER M. MOLL,
Plaintiffs
Vo
JEFFREY B. RETTIG,
KENNETH A. RAPP, and
THOMAS, THOMAS &
HAFER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-7472 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this {b~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,
d/Wesley Oler, ~-s~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
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STERLING K. MOLL
and ESTHER M. MOLL,
Plaintiffs
JEFFREY B. RETTIG,
KENNETH A. RAPP, and
THOMAS, THOMAS &
HAFER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 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/~, 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.
STATEMENT OF FACTS: PROCEDURAL HISTORY
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.l
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? 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]? 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]
Plaintiffs' complaint, paragraphs 5, 7-9.
Plaintiffs' complaint, paragraphs 5, 14.
Plaintiffs' complaint, paragraph 16 and exhibit 3.
Plaintiffs' complaint, paragraph 17 and exhibit 4.
Plaintiffs' complaint, paragraph 18.
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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.''6 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.7 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 Plaintiffsl° and that the item was made an exhibit in the
deposition,ii However, Defendants further state that the item was retrieved and
6 Plaintiffs' Complaint, Paragraph 19.
? Plaintiffs' complaint, paragraphs 24-28.
8 Plaintiffs' complaint, paragraphs 26-27.
9 Plaintiffs' complaint, count II, claim for relief.
~0 Defendants' preliminary objections, paragraph 3.
il Defendants' preliminary objections, paragraph 11 n.1.
has been returned to Plaintiffs.n Plaintiffs concede that the item was itself only a
copy~3 and that it has been retumed to them?
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
~2 Defendants' preliminary objections, paragraph 11.
~3 Plaintiffs' "Response to Preliminary Objections of Defendants," paragraph 3.
~4 Plaintiffs' "Response to Preliminary Objections of Defendants," paragraph 11.
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privilege, based upon public policy. Id. 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 case~5 at its conclusion upon petition?
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).
~5 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).
~6 Miller v. Potteiger, No. 3591 Civil 1990 (Cumberland Co. March 13, 1995).
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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 injuria--"[1]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. Griffiths, 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.~7
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 D~fendants' 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 II, 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
~7 Smith v. Griffiths, 327 Pa. Super. 418, 476 A.2d 22 (1984).
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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:
ORDER OF COURT
AND NOW, this//'"t~ffay 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 Oler. 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
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