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Titel: Jefferson Davis, American
Autoren/Herausgeber: William J. Cooper
Aus der Reihe: Vintage Civil War Library
Seitenzahl: 848
Produktform: E-Book
Sprache: Englisch


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argued: March 28, 1977.
MICHAEL MEYERS, APPELLANTv.PENNYPACK WOODS HOME OWNERSHIP ASSOCIATION, A PENNSYLVANIA NON-PROFIT CORPORATION, AND MARION A. STEINBRONN
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action No. 75-13.
Adams, Rosenn, and Weis, Circuit Judges. Weis, Circuit Judge, concurring and dissenting.
Opinion OF THE COURT
ROSENN, Circuit Judge:
In this case, we are called upon to determine several significant issues growing out of a civil rights action commenced by Michael Meyers, a Negro, charging Pennypack Woods Home Ownership Association with discrimination against Negroes in housing and membership.
Pennypack Woods Home Ownership Association ("Pennypack" or "the Association") is a non-profit Pennsylvania corporation organized in 1952 which owns and manages a community of a thousand separate housing units of one, two, and three-bedrooms in northeast Philadelphia. Each resident of Pennypack Woods is a member of and owns a one-thousandth undivided interest in the Association while Pennypack itself holds fee simple title to all the homes. A member of Pennypack enjoys perpetual use of a house pursuant to a "Home Security Policy" so long as he complies with Pennypack's rules and regulations.
The demand for housing at Pennypack exceeds the supply and the Association has developed a complex system for filling vacancies. A member may transfer his Home Security Policy to certain close relatives, such as a parent or child, either by testamentary or inter vivos instrument, but such a member-resident may not otherwise "sell" his or her house. Units not transferred to relatives are allocated to Pennypack itself. First preference in disposing of two and three-bedroom units is given to current member-residents of Pennypack whose increased family size qualifies them for larger houses. Second preference is to children of current Pennypack members, thereby giving children who have not received their parents' house by transfer priority over outsiders in acquiring another Pennypack home. Those units which are filled neither by transfer to a relative nor by allocation to present Pennypack members or their children are then offered to persons who have been interviewed and placed on an approved waiting list. Any house still vacant would then, according to Pennypack's rules, be offered to a list of outsiders not yet interviewed or approved.
On September 6, 1971, plaintiff applied by letter to Pennypack for a three-bedroom house for himself, his mother, and his three younger siblings. Pennypack replied that the list for three-bedroom homes was closed, which was in fact the case.*fn1 In April 1972, Meyers once again wrote to Pennypack and asked to have his name placed on the waiting list and Pennypack again informed him that the list had been closed prior to his first application. In May 1972, Meyers' counsel made a written demand that Meyers' name be placed on the list ahead of persons applying after September 6, 1971. Pennypack refused to comply with Meyers' demand.
On January 3, 1975, having failed in his efforts to secure Pennypack housing, Meyers brought an action against Pennypack and Marion Steinbronn, its president, in the United States District Court for the Eastern District of Pennsylvania alleging racial discrimination and seeking equitable relief, compensatory and punitive damages and attorney's fees under the Civil Rights Act of 1866, 42 U.S.C. § 1982 (1970), and the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. (1970). Following a non-jury trial, the district court found that Pennypack had never had a black member since its inception in 1952 although blacks comprise 34 percent of Philadelphia's population. The court found, however, that
the absence of black members of Pennypack is largely explained by the fact that few black persons have inquired about or applied for membership in Pennypack.
The district court further found that at all relevant times except for the summer of 1971 when he lived adjacent to Pennypack Woods,*fn2 Meyers resided in the Bronx, New York, and that he had never sought housing in Philadelphia except for his application to Pennypack.*fn3 Based on these facts, the court concluded that Meyers was a "tester" rather than a bona fide applicant for Pennypack housing.
The district court entered judgment for defendants on three grounds, any one of which, in the opinion of the district court, would alone have furnished sufficient support for the judgment: (1) that Meyers was not a bona fide applicant; (2) that both of Meyers' claims were barred by the Statute of Limitations; and (3) that Meyers had failed to prove that defendants had discriminated against him because of his race. Meyers appeals from that judgment.
The first issue we must consider is standing. Having found that Meyers was a "tester," the district court held without citation that "the absence of a good faith offer on the part of Meyers is a complete defense to his complaint under the Fair Housing Act of 1968 as well as the Civil Rights Act of 1866." We need not review the holding that a plaintiff's lack of bona fides is a defense to a claim for relief under the Fair Housing Act*fn4 since we hold in Section III, A, infra, that Meyers' claim under that Act is time-barred. However, we are required to review the district court's holding as it applies to §§ 1981 and 1982.
The gist of the district court's holding that Meyers' status as a "tester" bars him from relief under §§ 1981 and 1982 is, as we understand it, that Meyers lacks the personal interest or stake in Pennypack's policies which is required to give him standing to sue. See, e.g., Tileston v. Ullman, 318 U.S. 44, 87 L. Ed. 603, 63 S. Ct. 493 (1943).*fn5 In appealing from this aspect of the district court's decision, Meyers asserts that the court's finding that he was a "tester" is clearly erroneous but we need not review the court's finding of fact. Even assuming arguendo that Meyers' application to Pennypack was in fact motivated solely by his desire to test the legality of Pennypack's policies, such a purpose is sufficient to confer standing. See, e.g., Smith v. YMCA of Montgomery, 462 F.2d 634, 645-46 (5th Cir. 1972). In Evers v. Dwyer, 358 U.S. 202, 3 L. Ed. 2d 222, 79 S. Ct. 178 (1958) (per curiam), the Supreme Court held that a black plaintiff had standing to maintain a civil rights action even though his purpose in sitting in the white section of a segregated bus was to test the legality of the segregation. The Court reiterated the same principle nine years later in Pierson v. Ray, 386 U.S. 547, 558, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). A group of clergymen from various Northern states, Pierson v. Ray, 352 F.2d 213, 215-16 (5th Cir. 1965), travelled to Jackson, Mississippi, and entered that city's bus terminal "for the sole purpose of testing their rights to unsegregated public accommodations." The Court held that
The petitioners had the right to use the waiting room of the Jackson bus terminal, and their deliberate exercise of that right in a peaceful, orderly, and inoffensive manner does not disqualify them from seeking damages under § 1983.
386 U.S. at 558 (footnote omitted). We therefore hold that Meyers has standing to maintain his action under § 1982.
A. The Fair Housing Act
Meyers contends that the district court erred in holding that his Fair Housing Act claim was time-barred by the 180 day limitation of 42 U.S.C. § 3612(a).*fn6 According to Meyers, not only did the final refusal on the part of Pennypack occur as late as December 1975 but Pennypack's discriminatory acts are also of a continuing nature. For these reasons, Meyers argues that his complaint filed on January 3, 1975, was timely.
Pennypack, on the other hand, maintains that the violations are not continuing and that the last of the alleged discriminatory housing practices was the April 26, 1972, letter sent by Pennypack to Meyers - the final refusal by Pennypack to place Meyers on the list. Pennypack contends that the complaint was untimely since it was filed more than two and a half years later. Two issues are thus raised: first, whether the alleged violation is a continuing one, and second, whether Pennypack's conduct in December 1974 constituted a violation of the Act.
Turning to the first of these issues, we note that Meyers cites no authority for his argument that acts such as those alleged to have been committed by Pennypack may constitute a continuing violation for purposes of the 180 day limitation. Furthermore, all four of the cases which we could find seem to assume without discussion that a violation "occur[s]" and the 180 day period begins to run when an oral or written refusal to rent or sell takes place.*fn7 We are aware, of course, of the employment discrimination cases dealing with the analogous 180 (formerly 90) day limitation period under Title VII of the Civil Rights Act of 1964*fn8 which hold that a discriminatory refusal to hire may constitute a continuing violation. See, e.g. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975); Briggs v. Brown & Williamson Tobacco Corp., 414 F. Supp. 371 (E.D. Va. 1976); Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D. N.Y. 1975). Those cases, however, were class actions involving alleged patterns and practices of discrimination continuing to affect all members of the plaintiff class whereas the instant case concerns a discrete act of alleged discrimination against the individual plaintiff.*fn9 Cf. Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir. 1975); Loo v. Gerarge, 374 F. Supp. 1338, 1340 (D. Hawaii 1974). In the absence of contrary authority, we are persuaded that the alleged section 3604 violation against Meyers is not a continuing one for purposes of the 180 day limitation period of section 3612(a).
We must also reject Meyers' contention that Pennypack's conduct in December 1974 constituted either an independent violation of the Fair Housing Act or the final component of a single violation stretching back to Pennypack's initial refusal to sell Meyers a house in September 1971. The conduct to which Meyers adverts consisted of letters from Pennypack's counsel to Meyers' counsel rejecting the latter's December 1974 demands for redress. If such futile attempts at settlement or negotiation by the alleged injured party were allowed to breathe life into a claim long dead, the 180 day limitation established by Congress would have little significance. Such a tactic, if permitted, would enable a victim of alleged discrimination to circumvent the statute of limitations merely by provoking his adversary into another refusal to sell or rent. We cannot believe that Congress intended the 180 day limitation of section 3612(a) to operate in such a fashion. Cf. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). Accordingly, we hold that Meyers' claim under the Fair Housing Act is time-barred.
B. The Civil Rights Act of 1866
The 180 day limitation of the Fair Housing Act has no application to Meyers' claim under the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982 (1970). Warren v. Norman Realty Co., 513 F.2d 730, 733 (8th Cir.), cert. denied, 423 U.S. 855, 46 L. Ed. 2d 81, 96 S. Ct. 105 (1975); Hickman v. Fincher, 483 F.2d 855 (4th Cir. 1973); cf. Young v. Int'l Tel. & Tel. Co., 438 F.2d 757 (3d Cir. 1971). Since Congress has provided no federal statute of limitations for §§ 1981 and 1982 actions, we must apply "the limitation . . . which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law." Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc). See also Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974). The present action having been brought in federal court in Pennsylvania, our task is to determine which Pennsylvania statute of limitation would govern similar action under state law in a Pennsylvania state court. The decisions of the federal district courts of Pennsylvania are in conflict on this issue, some favoring Pennsylvania's two year statute applicable to certain actions for personal injury,*fn10 12 P.S. § 34,*fn11 and others favoring Pennsylvania's general six year statute,*fn12 12 P.S. § 31.*fn13 The resolution of this controversy requires that we understand both the essential nature of the federal claim and the operation of the various Pennsylvania statutes.
Turning first to the characterization of the federal claim, we observe that the decisions of the Supreme Court and of the other circuits do not reach any consensus. Actions under sections 1981 and 1982 have been analogized to state law actions for personal injury,*fn14 breach of contract,*fn15 trespass and wrongful appropriation of property,*fn16 defamation and intentional infliction of mental distress,*fn17 or to some unspecified tort.*fn18 See Annot., State Statutes of Limitations As Affecting Federal Civil Rights Actions Under 42 U.S.C. § 1981, 29 A.L.R. Fed. 710 (1976). Furthermore, each aspect of a complaint under sections 1981 or 1982 may be given separate statute of limitations treatment depending on the nature of the specific act or acts complained of. Smith v. Olinkraft, Inc., 404 F. Supp. 861 (W.D. La. 1975); cf. Polite v. Diehl, 507 F.2d 119, 122-23 (3d Cir. 1974) (en banc).
We begin our consideration of possible state law analogies to Meyers' action by observing that the allegations of his complaint sound in tort, not in contract. Although the complaint may be read as alleging a wrongful refusal to enter into a contract, it cannot possibly be construed as alleging the breach of any existing contract. Meyers' cause of action arises not from a breach of promise but from a breach of duty. It must therefore find its analogy in some sort of action in tort. Cf. Sewell v. Grand Lodge of Int'l Ass'n of Machinists and Aerospace Wrkrs., 445 F.2d 545, 548-50 (5th Cir. 1971), cert. denied, 404 U.S. 1024, 92 S. Ct. 674, 30 L. Ed. 2d 674 (1972). The determination that the action sounds in tort is only the first step, however; we must identify the specific state tort most similar to the acts alleged in the complaint. We can best assess the similarity of the various state law torts to Meyers' federal claim from three perspectives: (1) the defendant's conduct, (2) the plaintiff's injury, and (3) the relief requested.
Relying on the dictum in Curtis v. Loether, 415 U.S. 189, 195-96 n.10, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974), Pennypack urges that for statute of limitations purposes we treat Meyers' complaint as if it alleged defamation or intentional infliction of mental distress. Without expressing any opinion as to whether that analogy might be appropriate for other actions under sections 1981 or 1982 complaining of different sorts of conduct, we decline to adopt it in the case sub judice. Meyers' complaint may peripherally encompass the emotional or psychic injury which he may have suffered, but its averments are directed to a specific concrete injury: Meyers wants to buy a house in Pennypack Woods and Pennypack will not sell him one. Pennypack's conduct bears little resemblance to defamation or to an intentional infliction of mental distress. Meyers' injury is primarily tangible, not intangible; and Meyers wants both a house and damages for the deprivation he has endured. For these reasons, we do not believe that Meyers' suit can be properly treated as an action for defamation or for intentional infliction of mental distress.
We are also not persuaded by Pennypack's suggestion that Meyers' action should be analogized to a state law action for invasion of privacy. Although an invasion of privacy also may produce mental anguish, the essence of the injury is an unreasonable interference in making known a person's affairs to others or exhibiting his likeness to the public. See Restatement of Torts § 848; Hull v. Curtis Publishing Co., 182 Pa. Super. 86, 125 A.2d 644 (1956). On the other hand, the gravamen of the injury alleged here is the tortious refusal to contract for the sale of a house. Flowing from both injuries - the invasion of privacy and the refusal to enter into a contract - may be a painful mental reaction, but this commonality hardly affords a sufficient basis for equating the breach of duty in the two instances. Pennypack's conduct bears little resemblance to an invasion of another's privacy.
Having concluded that Meyers' actions cannot be equated with an action for defamation, for mental distress, or for invasion of privacy, we turn our attention to another group of torts recognized by Pennsylvania law - torts such as fraudulent interference with contractual rights,*fn19 wrongful interference with another's business,*fn20 violation of seniority rights,*fn21 and breach of an express trust.*fn22 All these torts involve the wrongful interference with another's financial, commercial, or business rights. A victim of one of these torts suffers not so much from an emotional or mental trauma as he does from the actual denial of his right to lawfully pursue his business, employment, or personal affairs. Meyers appears to complain of just such a denial.
To be sure, Meyers has also allegedly suffered injury to his "feelings" but the thrust of his complaint, cf. McCully-Smith, supra, is that Pennypack wrongfully interfered with and deprived him of his federally protected right to contract for the purchase of a home. We must therefore apply the statute of limitations which Pennsylvania courts apply to state law actions complaining of similar tortious conduct.
The Pennsylvania scheme of limitations is complex. The Act of March 12, 1713, 12 P.S. § 31, see note 13 supra, established inter alia a single six year limitation governing all actions in contract as well as all actions of trespass.*fn23 The Act of June 24, 1895, 12 P.S. § 34, see note 9, supra, without reference, however, to the former act, provides a two year limitation on actions for personal injury not resulting in death. Faced with this incongruity, the Pennsylvania Supreme Court has held that the Act of 1895 repealed the Act of 1713 insofar as relevant but that the Act of 1713 still governs all actions in trespass not involving personal injury.*fn24 See Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958); Helmig v. Rockwell Mfg. Co., supra, 131 A.2d at 626 n.3, 628. Thus, Meyers' action is governed by the general six year statute, section 31, unless it falls within the precise terms of the more limited two year statute, section 34.
Even without the benefit of the numerous cases on point, we would be inclined to conclude as a matter of statutory construction that Meyers' claim does not come within the limited compass of section 34. First, that section by its terms applies only to "actions brought to recover damages" whereas Meyers seeks a broad range of equitable relief. See Jones v. United Gas Improvement Corp., 383 F. Supp. 420 (E.D. Pa. 1975). Secondly, the statutory phrases "injury wrongfully done to the person, in cases where the injury does not result in death" expresses a limitation only on actions for bodily injury*fn25 whereas Meyers' claim is for tortious interference with his right to contract for the purchase of a house. See Jones, supra.
We need not base our decision on such considerations, however, since the case law is clear. In state law suits resembling Meyers' action, both Pennsylvania courts and federal courts applying Pennsylvania law have uniformly applied the six year limitation of section 31.*fn26 See McCully-Smith Assoc., supra, 358 F. Supp. at 332; Falsetti, supra, 249 F. Supp. at 972; Cooper, supra, 201 F. Supp. at 170 n.3; Sherwin, supra, 18 F.R.D. at 194; Haefele v. Davis, 399 Pa. at 511, 160 A.2d at 714; Helmig, supra, 389 Pa. at 28 n.3, 131 A.2d at 626 n.3. Cf. Gainey v. Brotherhood of Rwy. and Steamship Clerks, 275 F. Supp. 292, 306 (E.D. Pa. 1967), affirmed, 406 F.2d 744 (3d Cir. 1968), cert. denied, 394 U.S. 998, 89 S. Ct. 1590, 22 L. Ed. 2d 775 (1969). We therefore conclude that Meyers' action under §§ 1981 and 1982 is not time-barred.*fn27
We have determined that Meyers had standing to maintain his action and that his claim under the Civil Rights Act of 1866 was not time-barred. Nonetheless, we are unable at this time to review the district court's judgment that plaintiff suffered no discrimination because the district court excluded two key witnesses offered by Meyers on the ground that they were not listed in plaintiff's pretrial memorandum. Although a trial court's ruling excluding evidence because of the failure of counsel to adhere to a pretrial order will not be disturbed on appeal absent a clear abuse of discretion, De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir. 1974); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972), we are constrained to conclude that the exclusion of these two witnesses did constitute such an abuse.
The district court had directed (1) that all discovery be completed by January 30, 1976, (2) that plaintiff file his pretrial memorandum, including a list of his expected witnesses, by January 15, 1976, and (3) that defendant file its pretrial memorandum, including its expected witnesses, by February 2, 1976. Plaintiff timely filed his pretrial memorandum listing seven witnesses and on February 23, 1976, a pretrial conference was held and trial was scheduled for March 17, 1976. Three days later, February 26, 1976, plaintiff, evidently having learned of potential new fact witnesses, sent a letter to defendant's counsel with copy to the trial judge informing him that he wished to supplement the pretrial memorandum with the names of the following witnesses whom plaintiff might call at trial:
Donald Sweeney
Mr. and Mrs. Morris Milgram
Custodian of Records of Pennypack
Woods Home Ownership Association
The letter concluded with the following invitation: "If you have any questions concerning the above, please do not hesitate to contact us." Donald Sweeney was Pennypack's former president and then resided in Pittsburgh, Pennsylvania. Milgram was a developer of integrated communities who lived in Green Belt Knoll adjacent to Pennypack. Defendant neither accepted the invitation of plaintiff's counsel to contact him nor attempted to depose the new witnesses but by letter dated March 3, 1976, to the trial judge pleaded prejudice and surprise.
When the case was called for trial on March 17, plaintiff called Sweeney and Morris Milgram. According to counsel for Meyers, they would have testified that in past years Negroes had inquired or unsuccessfully applied for housing at Pennypack and that Pennypack had a reputation in the black community as an all white development in which Blacks could not buy homes.
Pennypack objected to testimony of these two witnesses because they had not been previously listed in the pretrial memorandum and because their testimony now came as a surprise and was prejudicial since defendant had not had the opportunity to depose them and ascertain in advance what they proposed to say. Plaintiff responded that his letter to defense counsel afforded him "every opportunity" but no request was ever made for information as to what the witnesses would testify.*fn28 The trial judge sustained defendant's objection and excluded the witnesses.
A reading of the district court's opinion demonstrates how important such testimony might have been and how critical is its absence. The district court's conclusion that Pennypack did not discriminate against Meyers was based in large measure on the premise that Pennypack's policies had no discriminatory effect against Blacks in general. That conclusion was in turn predicated on the court's finding of fact that the potentially significant statistical absence of black residents in Pennypack was not the result of discrimination but rather was a product of complete disinterest by Blacks in residing in Pennypack. Evidence tending to prove that the absence of Blacks was not due to a lack of interest conceivably could have led the judge to conclude that Pennypack's policies were intentionally discriminatory or, at least, discriminatory in their effect, and might ultimately have led to a judgment in Meyers' favor. Given these facts, the question is whether the district court's exclusion of Sweeney and Milgram constituted an abuse of discretion.
Decisions of this and other courts suggest the factors to be considered in resolving this question: bad faith on the part of the party seeking to call witnesses not listed in his pretrial memorandum; see Clark v. Pa. R.R. Co., 328 F.2d 591 (2d Cir. 1964), cert. denied, 377 U.S. 1006, 84 S. Ct. 1943, 12 L. Ed. 2d 1054 (1965); ability of the party to have discovered the witnesses earlier, see Hunt v. Pa. R.R. Co., 41 F.R.D. 349 (E.D. Pa. 1967); validity of the excuse offered by the party, Thompson v. Calmar Steamship Corp., 331 F.2d 657, 662 (3d Cir. 1964); willfulness of the party's failure to comply with the court's order, Taggart v. Vermont Transportation Co., 32 F.R.D. 587 (E.D. Pa. 1963), affirmed 325 F.2d 1022 (3d Cir. 1964); the parties' intent to mislead or confuse his adversary, Pakech v. American Export Isbrandtsen Lines, Inc., 69 F.R.D. 534 (E.D. Pa. 1967); and finally, the importance of the excluded testimony, Clark, supra. Underlying the cases to which we have adverted are these basic considerations: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the court's order.
Applying these considerations in the instant case, we are constrained to conclude that the district court abused its discretion in excluding Sweeney and Milgram. Pennypack made no allegation and the district court made no finding that Meyers' failure to include Sweeney and Milgram in his list of witnesses either in his original pretrial memorandum or in his amended pretrial memorandum of February 23 was a product of bad faith nor that Meyers' failure to comply with the order was willful or intended to mislead or confuse Pennypack. The excuse offered by Meyers for his failure to list the witnesses was apparently a bona fide representation that he had not discovered them until after the pretrial memorandum was filed. We have recently held that the exclusion of critical evidence is an "extreme" sanction, Dudley v. South Jersey Metal, Inc., 555 F.2d 96, at 99 (3d Cir. 1977), not normally to be imposed absent a showing of willful deception or "flagrant disregard" of a court order by the proponent of the evidence. In the instant case, neither the district court, nor Pennypack found or alleged such misconduct by Meyers. Id. In Dudley, supra, we recognized that counsel for the defendant had by his answers to certain interrogatories created confusion and uncertainty but we also observed that the plaintiff's assertion of surprise and prejudice had to be viewed in the context of the plaintiff's own failure to take any steps to clarify the facts.
The instant case presents a similar situation. The February 26 letter from Meyers' counsel, even though it was written almost three weeks before the commencement of trial, may have complicated the trial preparation of his adversary but Pennypack's counsel for his part made no attempt to simplify matters by responding to plaintiff's offer to furnish information or by initiating further discovery.
Weighing against these factors were the alleged prejudice to Pennypack and the possible disruptive effect of waiving the rule. On examination, however, neither of these factors appears significant in this case. The possible prejudice to Pennypack was minimized not only by Pennypack's familiarity at least with Sweeney, its former president, but by the sequence of events. The letter to which Pennypack objected so strenuously followed by only three days Meyers' filing on his amended pretrial memorandum to which Pennypack voiced no objection. More importantly there remained after the letter was sent almost three weeks before trial. Yet Pennypack made no effort to depose or serve interrogatories on the new witnesses or even to request Meyers' counsel to furnish additional information or written statements of the proposed testimony. We believe that in these circumstances Pennypack had some obligation to take steps to minimize its alleged prejudice and surprise. We are also persuaded that the orderly and efficient trial of other cases in the court and of this case in particular would not have been seriously impeded by the relaxation of the trial order. It would have been entirely appropriate for the district court to impose reasonable sanctions on Meyers for his failure to list the witnesses, but we believe a less drastic sanction, especially since it was a bench trial, should have been adopted - perhaps, an adjournment of a few days while Pennypack conducted discovery with costs taxed to Meyers. Dudley, supra, slip op. at 8.
For these reasons, we hold that the district court abused its discretion in excluding the testimony of Sweeney and Milgram. Since this is not a jury trial, it may be feasible simply to reopen the trial for additional testimony rather than to hold an entire new trial.*fn29 We encourage the district court to consider this possibility.
The judgment of the district court will be affirmed in part and reversed in part and the case remanded for further proceedings not inconsistent with this opinion. Each party to bear his or its costs.
WEIS, Circuit Judge, Concurring and Dissenting:
I join in Parts I, II and III of the majority opinion. However, I am unable to agree with the majority view in Part IV that the trial judge's refusal to allow two proposed witnesses to testify was an abuse of discretion.
On numerous occasions, this Court has held that the determination as to whether a party should be held to pretrial orders is within the discretion of the trial judge. Absent a clear abuse of that discretion, we will not interfere with such rulings. See, e.g., De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir. 1974); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972); Ely v. Reading Company, 424 F.2d 758 (3d Cir. 1970). That principle should be applied here.
The plaintiff filed an amended pretrial memorandum on February 23, 1976, and a pretrial conference took place on that day. The letter from plaintiff's counsel listing four additional witnesses was dated February 26, 1976. The record does not reveal when it was delivered to defense counsel, but the objection dated March 3, 1976 followed soon thereafter.
Under local Rule 7 of the district court, only witnesses listed in the pretrial order will be permitted to testify except to "prevent manifest injustice." The trial judge noted that the rule was designed to give both sides an opportunity to explore the facts in the case and that it was unfair to bring in a witness at the eleventh hour when the other party could not arrange for a deposition.
The majority faults defendant for not contacting plaintiff's counsel to secure information from him, not initiating further discovery, or taking other steps to minimize prejudice. In short, the burden is placed on the defendant to cure a situation brought on by the plaintiff's dereliction. The record contains no explanation of when plaintiff first learned of the witness, particularly if his identity were discovered before February 23, the date of the pretrial conference; or why plaintiff did not request an amendment of the pretrial order or a further pretrial conference. Conspicuously lacking also is the justification plaintiff had for his failure to be prepared for pretrial as required by the court's order of November 18, 1975.
Since the time for discovery fixed by the court had expired, defendant was not free to depose the four proposed witnesses in the absence of a court order. Under the circumstances, one would have expected the plaintiff at least to have delivered a statement of the proposed witnesses' testimony and an offer to arrange for depositions, if agreeable to the court. Plaintiff did nothing, choosing instead to wait until the day of trial for a ruling from the court. I find no abuse of discretion on this record and, therefore, do not agree with the majority's remand order. Since I am in the minority, however, and the remand will take place, I note my concurrence with Judge Rosenn's suggestion that because this is a non-jury trial, a limited reopening may suffice.
In view of the remand order, it is not appropriate for me to express my views on the other serious issues not reached by the majority and the ultimate disposition of the case.
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Stephen and Amanda Aubrey.
Station Road
Beer Garden, Cask Marque, Food Available, Games
Monday 5pm-11pmTuesday to Friday 11.30am - 2.30pm / 5.00pm - 11pm. Saturday 11am - 11pmSunday 12pm - 10.30pmChristmas & New Year
Saturday 24th - Christmas EveBar Open: 11.30am - 11.00pmSunday 25th - Christmas DayBar Open: 11.30am - 1.30pm, Lunch Served: 12noon - 3.00pmCHRISTMAS FIVE COURSE LUNCHEON£55.00 per head - £27.50 per childBooking REQUIRED, 50% Deposit when bookingMonday 26th - Boxing DayBar Open: 11.30am - 11.00pmLunch Served: 12noon - 4.30pm, kitchen closed in evening
Tuesday 27th - Friday 30th Open As Usual
Saturday 31st - New Years EveBar Open: 11.30am - 1.30am (Strictly No Entrance After 10.30pm)Lunch Served: 12noon - 3.00pmNEW YEARS MASQUERADE DINNER 6.30pm - 20.30pmRed Carpet Champagne Reception, Canapes, Four Course Set Menu£59.95 per head - £29.95 per child
NEW YEARS CELEBRATIONSBig screens with live links from London for the firework displays and celebrationsshown in the bar. Create your own playlist and dance away in the barBar Open till 1.30am, No Entrance After 10.30pmNew Years DayBar Open 11.30am - 11.00pmLunch Served: 12noon - 4.30pm, kitchen closed in evening
Lunch 12-2 Dinner 6- 9 (No food Sunday nights/ Monday Lunch ) We are happy to cater for events and parties outside of these time by prior arrangement .
All food cooked from fresh by Head chef Christophe le Saint, locally sourced produce and a wine list to accompany the menu .
Thursday night is steak night with a free glass of house wine.Friday night is Chef Christophe's Moules et Frites night with a free glass of fizz to end the week.On Sundays, come and enjoy a choice of traditional roast dinners with fresh vegetables.Bookings are recommended, call 01386 700362 or email firstname.lastname@example.com.
Download our Christmas Menu
The Great Western Arms is the 'local' of Blockley, a picturesque village nestled amongst the Cotswold Hills of northern Gloucestershire.
Fancy a pint, a cappuccino, an americano or even a freshly made cup of tea or a pint of Hooky beer? Well there is only one place in Blockley where you can get all four – the Great Western Arms.
The Pub has recently been extensively refurbished and now boasts 1st class facilities and comforts. The spacious lounge bar/restuarant retains its period 'feel' but has been re-furnished and decorated with great taste and care.
Walkers are welcome to leave vehicles in the pub's car park, and if they phone beforehand they can arrange for a meal to be ready for them when they return from their ramblings through some stunning nearby countryside. Pub games are a major feature - there are crib and darts teams, there are also quiz nights.
In the springtime and summer hanging baskets provide a stunning floral welcome to the pub and on a sunny day there cannot be many better places to relax than in the pub's sun-trapping terrace.
We have a large patio area with five tables each seating upwards of four people. There is also an extensive barbeque area that is regularly pressed into service during special events like our annual beer festival and occasional charity events.
Coming up in October : Saturday 8th : wine of the month promotion night..... £5per bottle off Octobers wine of the month all day and night. Saturday 15th : Lobster Night bookings highly recomended . Saturday 22nd : Hosting a fancy dress charity evening , 60s rock n roll theme , karaoke , raffle. Linda Russ from the village is raising money for Women verses cancer and is also doing in tough conditions a cycle ride from Vietnam to Cambodia on Feb 7th , so come along and lets help raise loads of money for this much worthy cause. Saturday 29th - Halloweeen night : We will be running our first `best pumpkin` night for the children, bring your pumpkins along to be judged prizes for the best three pumpkins and fancy dress free hot dogs for the children, judged at 7.30pm . October onwards GWA vouchers will be available for those who are stuck for ideas for family or friends for birthdays , anniversaries & christmas presents then this is the perfect option to treat someone special.
Christmas day bookings are now being taken. £55 per head / £27.50 (child ) served between 12- 3pm bookings highly recommended call for details.
Darts Quiz nights
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Hotel Le Camelia: Find photos, reviews, information, amenities and compare prices for 2 stars hotels in Saint-Hubert, Belgium.
Hotel Le Camelia is situated in Saint-Hubert and is close to the area's tourist attractions.
Hotel description
Hotel Le Camelia Saint-Hubert has 7 cosy rooms that are filled with all the essentials to ensure an enjoyable stay. There are also several rooms especially for families.
Hotel Le Camelia serves breakfast every morning, and has a bar where guests can relax with a drink. There is also the added convenience of an in-house restaurant.
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Mindray Datascope Pm8000 Patient Monitor Trio Demo
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This is a Mindray PM8000 Patient Monitor.
We ship all the world
Pls contact us for details
units have Masimo SpO2, NIBP, ECG, Temp, and a printer. We have several available that are Demo units. Very lightly used. Each monitor will include (1)Masimo LNOP-DCI Finger probe w/ Masimo Exension cable (lightly used) ; (1) Brand New 3 lead ECG Cable; (1) Brand New NIBP Hose ; (1) Brand new Adult NIBP Cuff.
*Includes a 1 year warranty!
These monitors are very similar to the Datascope Trio, at a less expensive price. Mindray purchased Datascope and are now manufacturing the Datascope DPM4. Which is this same montior with Datascope labels. This is a great opportunity to buy a nice preop/recovery room monitor at a great price.
Parameters including ECG/RESP, SpO2, NIBP, TEMP, IBP and Pulse Rate
40 seconds full-disclosure waveforms review
Maximum 72-hour graphic and tabular trends of all parameters
Suitable for adult, pediatric and neonatal patient
International version and US version are available
8.4 TFT display, maximum 5 waveforms
Massimo SpO2, Built-in recorder and battery
258mm (W) x 244mm (H) x 136mm (D)
Weight: 3.9kg without battery
4.5kg with 1 battery
Power Supply
Power Source: AC mains power or Internal battery power
AC Mains Power Source
Power Requirements: AC 100~240V (}10%)
Line Frequency: 50/60 Hz (}3Hz)
Current: 80VA
Application Scope
Adult, pediatric and neonatal
8.4" color active matrix TFT
Resolution: 800x600
Trace: 5 waveforms
Sweep Speed: 6.25, 12.5, 25 and 50mm/s
Alarm indicator light
Power indicator light
Audio indicators for QRS beep and alarm sound
Lead Type: 5-lead or 3-lead selectable
Input: 5-lead: RA; LA; RL; LL; V or R; L; N; F; C
3-lead: RA; LA; LL or R; L; F
Lead Selection: 5-lead: I; II; III; avR; avL; avF; V
3-lead: I; II; III
ECG Waveform
2 channels
Gain Selection: x0.25, x0.5; x1; x2; auto
Sweep Speed: 12.5mm/s, 25mm/s, 50mm/s
Thermal Recorder, 1-IBP, 2nd Channel TEMP (no IBP option with 2nd Channel TEMP)
Company Contact:
Contact Name: Qiwei Li
Company Name: Ronseda Electronics Co., Ltd
Tel: 86075586251835
Mobile: 86-118823179095
Fax: 86075586330961
Street Address: 6A, Building 96, Zhenglong
Nanguang ,Chuangye Road, Nanshan
District , Shenzhen, China
Member name: RonsedaElectronics
Member Since: 26 March 2008
Total Leads:
1376 RonsedaElectronics Import Export Business Leads
Business focus: Patient Monitor, Ultrasound Scanner, Pulse Oximeter, Ecg Cable, Nibp Cuff, Spo2 Sensor, Ecg, Ekg, Fetal Doppler, Disposable Medical Cables
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- By zeomedical - On Tue 06 Nov, 2012 10:56 pm: mindray pm-9000 express configuration that fits your needs from optional configurations every configuration includes the mindray accessory kit which ....
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Mindray Pm9000, Pm8000, Pm7000 Ecg Cable
- By spotwosensorECGcable - On Wed 08 Aug, 2012 6:49 am: pm8000 pm7000 ecg cable mindray we have many other medical accessories compatible with nihon kohden ge masimo nellcor fukuda kontron schiller....
Mindray One Piece 5 Lead Patient Monitor Ecg Cable Wth Leadwire
- By Pansw - On Thu 19 Aug, 2010 9:13 am: mindray one piece 5 lead patient monitor ecg cable wth leadwire pm05ls specs mindray 12 pin plug five leadwire terminal 4 0 snap compatible w....
8 Inch 16 9 Tft Screen Patient Monitor, Vital Sign Monitor, Multi-patient Monitor
- By Kernelmed - On Thu 18 Sep, 2008 2:05 am: monitor modes monitoring operation and diagnose big charactor display there are two nibp measurements by manual and cycle suitable for adults enfan....
Multi-parameter Patient Monitor 8 Inch Patient Monitor Made In China
- By RonsedaElectronics - On Fri 26 Jun, 2009 8:41 am: patient monitor 8 inch patient monitor made in china features 1 portable streamline handle design big-front display 2 ecg hr resp temp nibp ....
Bedside Patient Monitor, Vital Sing Patient Monitor
- By WuhanStrongElectronics - On Mon 10 Aug, 2009 3:05 am: patient monitors to improve the quality system strong had obtained iso9001 and iso13485 quality assurance certification in 2003 our team of dedica....
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Mains Adapters
Labtalk: the case of the treacherous LED…
On the cover of an old copy of Elektor in large print it states: 'Equipment is only as good as its power supply'. Even though that particular edition is now more than thirty years old the statement is as true today as it was then. In this article, two misbehaving routers are repaired.
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"This is the RWE Tower. I don't..." Essen Things to Do Tip by evilboomer
Essen Things to Do: 83 reviews and 201 photos
This is the RWE Tower. I don't think it's a 'must see activity' but when you are in Essen and in or around the city you can't oversee this tower. It's a new landmark here in Essen and it looks really great.
But I don't know if you can go to the top. I should try it someday and make some good pictures of Essen.
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Thread: Free Directories To Advertise
06-15-2009, 05:27 PM #1Disabled
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Free Directories To Advertise
any one has some sites to share that offer such advertising. It will help me and others a lot i think
06-15-2009, 06:20 PM #2Web Hosting Master
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Supreme Court of Pennsylvania
August 17, 2015
ROBERT SCHANNE, Appellantv.JENNA ADDIS, Appellee
Argued March 10, 2015
Appeal from the U.S. Court of Appeals, Third Circuit No. 12-4044.
For Women's Law Project, Amicus Curiae: Amal Munas Bass, Esq., James Norman Boudreau, Esq., Terry L. Fromson, Esq., Carol E. Tracy, Esq., Women's Law Project. Christiana Lynn Signs, Esq., Greenberg Traurig, LLP.
For United States Court of Appeals, Third Circuit, Participants: Marcia Mary Waldron, Esq.
Hon. Jane R. Roth (Sr.), Participants, Pro Se.
For Robert Schanne, Appellant: Wayne Arlen Ely, Esq., Timothy M. Kolman, Esq., William Charles Sipio, Esq., Kolman Ely, P.C.
For Jenna Addis, Appellee: Stephen J. Britt, Esq., Donnelly & Associates, P.C.
Page 943
We granted the Third Circuit's petition for certification in this defamation case. The question is whether the judicial privilege extends to an allegation made concerning a school teacher by a former student, where the allegation was made before quasi-judicial proceedings were commenced and without any intent that it lead to such proceedings.
Robert Schanne taught physics at Lower Merion High School in Ardmore, Pennsylvania from September 1997 through December 2010. Jenna Addis was his student during her junior and senior years, from 2001 until her graduation in 2003. After Addis graduated, she attended Tulane University in New Orleans, where she still resides.
In late November 2010, Addis (then age 26) was visiting Pennsylvania for the Thanksgiving weekend. During her visit, Addis spoke to Susan O'Bannon, a friend who was employed by Lower Merion High School. Addis told O'Bannon that she and Schanne had been romantically involved while Addis was a high school senior and during the summer after she graduated. O'Bannon reported Addis's allegation to school officials. Addis testified in her deposition that she discussed the matter with O'Bannon as a friend and not as an agent of the school. Addis stated, moreover, that she did not intend for O'Bannon to
Page 944
report the information to the school, that she was not aware O'Bannon would feel obligated to make such a report, and that she was surprised to learn that O'Bannon had done so. See N.T., Dec. 1, 2001, at 137, 141.
Upon hearing the allegations, school officials called Addis in New Orleans to investigate the matter further. They made two such calls in early December 2010 and memorialized the content of the conversations in papers which they sent to Addis for her correction and signature. The federal district court described these papers as Addis's official statement to the school concerning her relationship with Schanne.
According to the statement, while Addis was a high school senior, she developed an emotional attachment to Schanne and the two would sometimes eat lunch together in a workroom connected to the main physics classroom. For a period of four to six weeks in the fall of 2002, Schanne assisted Addis in preparing for the SAT physics exam by tutoring her at her home. During this time, the pair developed a relationship that included a physical component, albeit they did not have intercourse until Addis graduated. After Addis moved to New Orleans for college, she and Schanne kept in touch and would have intimate relations whenever Addis was in Pennsylvania for holidays, although they were " not a couple anymore." Statement at 3. At some point, however, Addis began to believe her high school involvement with Schanne was interfering with her ability to have healthy relationships with others, and she wanted Schanne to admit that his conduct had been inappropriate. She sent him an email to this effect, but was disappointed when Schanne responded by stating there was nothing improper about their relationship. During Addis's November 2010 visit to Pennsylvania, she met Schanne at a bookstore and repeated her concerns, but he again maintained that their relationship " wasn't wrong." Statement at 4.
Based on Addis's statement, school officials provided Schanne with a pre-termination Loudermill hearing as required by due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Shortly thereafter, Schanne was suspended. Schanne refused to attend a follow-up hearing in January 2011, and the school district terminated his employment later that month.
Schanne filed a defamation action against Addis directed to the federal court's diversity jurisdiction. In his amended complaint, Schanne alleged that his romantic involvement with Addis did not begin until after she graduated from high school, and that any contrary assertions by Addis were false and made with malice due to Addis's jealousy over Schanne's relationship with another woman. Schanne averred that Addis's statements were not judicially privileged because: they were not made during a school board meeting, hearing, or other judicial or quasi-judicial proceeding; no judicial or quasi-judicial proceeding regarding Schanne was " convened or contemplated" at the time Addis made her allegations; and no other privilege applied to the statements. Amended Complaint, ¶ 28.
Addis filed a motion for summary judgment which the federal court granted on the basis that all of her assertions were protected by the judicial privilege. See Schanne v. Addis, 898 F.Supp.2d 751 (E.D. Pa. 2012). In reaching this conclusion, the court reviewed state court decisions it construed as holding that statements published prior to or during judicial proceedings which relate to those proceedings are privileged. See, e.g., Post v. Mendel, 510 Pa. 213, 220, 507 A.2d 351, 355
Page 945
(1986); Binder v. Triangle Publ'ns, Inc., 442 Pa. 319, 323, 275 A.2d 53, 56 (1971). Referencing Milliner v. Enck, 709 A.2d 417 (Pa. Super. 1998), the court expressed that the privilege also applies in relation to quasi-judicial proceedings. See id. at 419 n.1. The court observed, moreover, that Schanne admitted in his pleadings that the school's pre-termination Loudermill hearing constituted a quasi-judicial proceeding, and that he conceded at oral argument that the material in Addis's statement to school officials was pertinent to that proceeding. See Schanne, 898 F.Supp.2d at 755-56. Thus, according to the court, the sole issue was whether Addis's initial allegation to O'Bannon was " pertinent and material" to the Loudermill hearing. In addressing the issue, the court reasoned:
Courts must also consider whether applying an absolute privilege in a given case would promote the privilege's purpose. The purpose of the privilege is " to afford [parties] freedom of access to the courts," to " encourage [witnesses'] complete and unintimidated testimony in court," and " to enable [counsel] to best represent his client's interests." Binder, 275 A.2d at 56. If not for this privilege, " a realm of communication essential to the exploration of legal claims [ ] would be hindered . . .." Post v. Mendel, 507 A.2d at 355. In this case, protecting Addis' statement furthers the purpose of the privilege.
Id. at 757 (alterations in original). Particularly since the declaration to O'Bannon had " served as the catalyst" for the Loudermill hearing, id., the court determined that the privilege applied to that statement. See id. at 758.
On appeal, Schanne argued that Addis's statement to O'Bannon was not made in the regular course of a judicial action, because Addis had gone to O'Bannon as a friend and did not contemplate possible judicial or quasi-judicial proceedings. Addis responded that her intent in communicating with O'Bannon was irrelevant and that, because it resulted in quasi-judicial proceedings, it was privileged as a preliminary communication. After the matter was briefed and argued before the Third Circuit Court of Appeals, that tribunal certified the following question for our resolution:
Does the absolute judicial privilege apply to an allegation of sexual misconduct against a teacher by a former student, which allegation was made prior to the commencement of any quasi-judicial proceeding and without an intent that the allegation lead to a quasi-judicial proceeding?
Schanne v. Addis, __ Pa. __, 99 A.3d 527 (2014) (per curiam).
Presently, Schanne argues that for immunity to attach there must be judicial or quasi-judicial proceedings to which the disputed statement is connected. Here, Schanne notes, Addis made her allegation to O'Bannon before any proceedings were initiated and without any intention or expectation that O'Bannon would report the information to the school. Schanne contends that extending the privilege in these circumstances would not only fail to serve its purpose, it would also permit an individual who makes a defamatory communication to a third party to later " engineer a privilege" by persuading the third party to file a complaint based on the communication. Brief for Appellant at 16. Schanne urges, in this respect, that the privileged status of a statement should not depend solely on the subsequent actions of a third party -- particularly because, in his view, a statement is " either privileged when made or it is not[.]" Id.
Addis responds, initially, by arguing that, because litigation is expensive and time consuming, this Court should hold
Page 946
that a declarant's intent in making an allegedly defamatory statement is irrelevant to the question of privilege so that the declarant will not have to litigate the issue. She claims a contrary holding would allow a defamation plaintiff to impose undue litigation expenses upon a defendant whenever the latter claims the judicial privilege. Separately, Addis suggests that there is a broad spectrum of possible consequences to a declaration made regarding a teacher in Schanne's position, from a private meeting with school officials which leads to an informal warning, to quasi-judicial proceedings which result in the teacher's discharge from employment. Hence, she proffers that focusing on the declarant's intent would be unworkable because it would be unclear where along that spectrum of intended outcomes the privilege should attach.
Addis continues that extending immunity in the present circumstances would be consistent with the judicial privilege's underlying policy -- as articulated in decisions such as Post and Binder -- of ensuring access to the courts for all persons who wish to assert a legal claim regardless of the merits of that claim. She notes, in this regard, that, once it is determined that immunity attaches, the individual is shielded from liability regardless of intent; thus, she urges that we reject Schanne's argument that the privilege does not apply in the first instance due to her lack of intent that the declaration to O'Bannon would lead to judicial or quasi-judicial proceedings. Relatedly, Addis urges that a privilege attaches, if at all, as a matter of law -- and thus, a speaker's intent as to whether it should attach is irrelevant.
A group of non-profit organizations have submitted a joint amicus brief emphasizing that it is in the public interest for schoolchildren to be protected from sexual harassment and sexual assault by school employees. Amici suggest that, because this type of victimization is underreported, extending the judicial privilege to Addis's initial communication to O'Bannon would be salutary insofar as it would allow students to report incidents of sexual misconduct without fear of retaliation.
Pennsylvania law closely guards the ability of a person whose reputation has been injured by defamatory statements to obtain redress for such injury.[1] In American Future Systems v. Better Business Bureau, 592 Pa. 66, 923 A.2d 389 (2007), the Court explained that the Pennsylvania Constitution " places reputational interests on the highest plane, that is, on the same level as those pertaining to life, liberty, and property." Id. at 77 n.7, 923 A.2d at 395 n.7; see Pa. Const. art. I § 1 (" All men . . . have certain inherent and indefeasible rights, among which are those of enjoying and defending . . . reputation . . .." ); id. § 11 (" [E]very man for an injury done him in his . . . reputation shall have remedy by due course of law . . .." ); see also Norton v. Glenn, 580 Pa. 212, 225-26, 860 A.2d 48, 56 (2004) (" The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being . . .." (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 22, 110 S.Ct. 2695, 2708, 111 L.Ed.2d 1 (1990))). See generally Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966) (recognizing that " [s]ociety
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has a pervasive and strong interest in preventing and redressing attacks upon reputation" ).
At the same time, there is a fundamental societal need for justice to be administered freely and efficiently through the eliciting of speech from parties and witnesses that may be accusatory or otherwise reflect negatively upon another's character. Thus, notwithstanding any reputational harm that may ensue, Pennsylvania, like many other jurisdictions, recognizes a judicial privilege providing immunity for communications which are made in the regular course of judicial proceedings and are material to the relief sought. See Bochetto v. Gibson, 580 Pa. 245, 251, 860 A.2d 67, 71 (2004).[2] The privilege covers statements by a party, a witness, an attorney, or a judge. See Binder, 442 Pa. at 323, 275 A.2d at 56. Furthermore, the privilege is absolute, meaning that, where it attaches, the declarant's intent is immaterial even if the statement is false and made with malice. See Bochetto, 580 Pa. at 251 n.12, 860 A.2d at 71 n.12.[3]
The judicial privilege serves an essential function in guaranteeing access to the courts and permitting the free articulation and resolution of legal claims. See Post, 510 Pa. at 221, 507 A.2d at 355 (observing that " the privilege exists because there is a realm of communication essential to the exploration of legal claims that would [otherwise] be hindered" ). Hence, its purpose is to allow participants in judicial proceedings to speak freely without fear of civil liability. As Binder explained:
The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client's interests.
Binder, 442 Pa. at 323-24, 275 A.2d at 56 (citing, inter alia, William Prosser, Torts § 109 (3d ed. 1964)).
In view of the broad policy objectives reflected above, the judicial privilege is not limited to statements made in open court, but encompasses pleadings as well. See Greenberg v. Aetna Ins. Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967). The Superior Court has extended the privilege further to " even less formal communications such as preliminary conferences and correspondence between counsel in furtherance of the client's interest," Pawlowski v. Smorto, 403 Pa.Super. 71, 81, 588 A.2d 36, 41 (1991), as well as to statements
Page 948
made to law enforcement officials for the purpose of persuading those officials to initiate criminal proceedings. See id. at 84, 588 A.2d at 43; cf. Adams v. Peck, 288 Md. 1, 415 A.2d 292, 294 (Md. 1980) (expressing that the privilege should extend to potentially defamatory statements published in documents which are prepared for possible use in connection with a pending judicial proceeding but which have not yet been filed). The Second Restatement of Torts is of this view:
A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.
Restatement (Second) of Torts § 588 (1977); see also id. § 587 (reflecting a parallel provision applicable to parties).
As illustrated by the foregoing, the scope of the judicial privilege has been gradually extended over time as courts, scholars, and practitioners have taken into account its usefulness in a variety of scenarios connected with the sound administration of justice as that term is broadly understood. The contours of the privilege, moreover, have been shaped by a case-by-case evaluation of whether its application in specific circumstances is needed to advance its underlying policy objectives.
Notably, in this regard, courts have also referenced such policy considerations to limit application of the privilege in certain instances where those considerations would not be implicated. For example, the Binder Court held that the judicial privilege " does not apply to newspaper accounts of judicial proceedings, for none of the policy considerations noted above are applicable to a news story." Binder, 442 Pa. at 324, 275 A.2d at 56. Likewise, Post concluded that the judicial privilege did not apply to a letter sent by an attorney to opposing counsel -- with copies to the judge, the Disciplinary Board of this Court, and opposing counsel's client -- accusing counsel of unethical behavior during the course of an ongoing trial. The Post Court observed:
The essential realm of protected communication is not . . . without bounds. Rather, the protected realm has traditionally been regarded as composed only of those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.
Post, 510 Pa. at 221, 507 A.2d at 355 (emphasis removed). While the letter, in one sense, pertained to the trial, it was immaterial to the relief sought or to the legal claims raised in that proceeding. See id. at 223-24, 507 A.2d at 356-57.
Bochetto provides another example along these lines. In that matter, a private club commenced a malpractice action against its former lawyer. The club's new attorney filed the complaint and then transmitted a copy of it to the news media. This Court noted that the filing of the complaint was privileged since it occurred in the regular course of judicial proceedings and was material to those proceedings. See Bochetto, 580 Pa. at 252, 860 A.2d at 72. However, its republication to the media was held not to be privileged, as it was an extrajudicial act that occurred outside of the regular course of the proceedings and lacked relevancy to the proceedings. Thus, giving privileged status to the republication would not advance the privilege's underlying policy aims. See id. at 253, 860 A.2d at 73; see also Barto v. Felix, 250 Pa.Super. 262, 267-68, 378 A.2d 927, 930 (1977) (concluding that, although allegations in an attorney's brief were protected by the judicial privilege, the attorney's remarks about the contents of the
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brief during a press conference were not likewise protected).
Overall, then, while the judicial privilege has expanded with the needs of justice, it has also been made subject to limitations where the administration of justice is not likely to be substantially affected. See Adams, 415 A.2d at 294 (" The question whether a defamatory statement should be absolutely privileged involves a matter of public policy in which the public interest in free disclosure must be weighed against the harm to individuals who may be defamed." ). Absent such limitations, the constitutionally-guaranteed right to recover for reputational injuries would be unduly constrained. See generally Asay v. Hallmark Cards, Inc., 594 F.2d 692, 698 (8th Cir. 1979) (cautioning that absolute immunity should not be " lightly conferred" as to preliminary statements); Brown v. Collins, 402 F.2d 209, 213, 131 U.S.App.D.C. 68 (D.C. Cir. 1968) (same).
We turn now to an evaluation of whether the policy concerns which underlie the judicial privilege are implicated by the circumstances as delineated by the Third Circuit. Perhaps the most salient aspect of the issue as framed is that, not only was the allegation made before the commencement of proceedings, it was made " without an intent that [it] lead to a quasi-judicial proceeding." Certification Petition at 7; Schanne v. Addis, Pa. at, 99 A.3d at 527. As reflected in the certification petition and the record, Addis spoke to O'Bannon only as a friend and with no desire or expectation that the allegation she made against Schanne would result in proceedings of any type. This is relevant because the judicial privilege operates by incentivizing individuals to speak freely within a judicial (or quasi-judicial) context -- or more to the point here, to speak freely in seeking to initiate judicial or quasi-judicial proceedings. Where a declarant has no intention of initiating proceedings or otherwise obtaining a remedy, clothing his or her statement with immunity cannot serve this goal. Assuming the declaration is otherwise actionable, then, protecting it under the cloak of the judicial privilege would do little to advance the privilege's objectives, while undermining the plaintiff's right to obtain recompense for any injury to his or her reputation.[4]
Our conclusion is consistent with the scope of the privilege as envisioned by the Restatement, which clarifies that only " communications preliminary to a proposed judicial proceeding" are immunized. Restatement (Second) of Torts § 588 (1977). The official comment elaborates further:
Page 950
As to communications preliminary to a proposed judicial proceeding, the rule stated in this Section applies only when the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.
Id. cmt. e (1977) (emphasis added); see also Cardtoons, L.C. v. Major League Baseball Players Ass'n, 335 F.3d 1161, 1167 (10th Cir. 2003) (reciting that the privilege attaches " as long as the speaker . . . has an actual subjective good faith belief that litigation is seriously contemplated" (internal quotation marks omitted)); Messina v. Krakower, 439 F.3d 755, 760, 370 U.S.App.D.C. 128 (D.C. Cir. 2006) (stating that, for the judicial privilege to apply in a defamation case, " litigation [must be] truly under serious consideration" (internal quotation marks omitted)); 50 Am.Jur.2d Libel & Slander § 282 (2015) (same).[5]
We are aware that the federal district court referenced several reported decisions from other States in holding that the judicial privilege applies " when student allegations against teachers lead to quasi-judicial proceedings." Schanne, 898 F.Supp.2d at 757. All of those cases are materially distinguishable from the current dispute in that the communications at issue were made in a directed effort to initiate proceedings or otherwise obtain relief from school officials for harm stemming from a school employee's alleged misconduct.[6] Under such a predicate, there is a colorable nexus between immunity and the privilege's underlying policy pertaining to
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the unencumbered resolution of claims in a judicial (or quasi-judicial) setting. See generally Brody, 87 Cal.App.3d at 732 (" [C]ommunications to an official agency, which are designed to induce the agency to initiate action, are as much a part of the 'official proceeding' as communications made after the agency commences proceedings." (emphasis altered)). No similar nexus exists in the present case.[7]
Nor do we find Addis's advocacy persuasive. The judicial privilege is a defense raised by the defendant. See Pa.R.C.P. 1030(a); Greenberg, 427 Pa. at 517, 235 A.2d at 579. As such, any costs associated with litigating the issue arise when the defendant asserts the privilege and the plaintiff challenges it. It can hardly be the law that a plaintiff is prohibited from challenging a defense raised by the defendant because there are costs to litigating its merits. As for Addis's observation that, once the privilege is held to apply, the speaker's intent in making the statement is immaterial: this is true as far as it goes, but it does not address the question raised here concerning whether the defendant's intent is properly taken into account in ascertaining if the privilege applies in the first instance.
Classifying the issue as a question of law does not alter our analysis. Assuming Addis's characterization in this respect is accurate, as a general proposition the resolution of legal issues in specific cases may depend on the facts involved. See, e.g., Mitchell v. Zoning Hearing Bd., 838 A.2d 819, 826 (Pa.Cmwlth. 2003) (" The issue of whether the proposed use constitutes an accessory use is a question of law to be determined based on the underlying facts." ). As evidenced by the above Pennsylvania decisions where the judicial privilege was held not to apply, the reviewing court considered facts such as whether the declaration was made in the course of judicial proceedings and/or whether it was relevant to the relief sought.
Finally, we do not believe that accounting for Addis's intent in the present scenario is improper simply because there may be a spectrum of possible intended outcomes in other cases. The privilege only applies relative to judicial proceedings -- or, for present purposes, quasi-judicial proceedings. See supra note 2. Reviewing courts are capable of discerning whether a particular proceeding fits that description. Furthermore, as discussed, Addis testified that she did not intend for O'Bannon to relay her comments to the school and, as such, did not contemplate that Schanne would be subject to any proceedings or otherwise suffer employment-related consequences. Thus, postulating a range of intended outcomes has little relevance to the present controversy.
We pause at this juncture to observe that this opinion should not be construed as attempting to resolve the distinct question of whether a privilege should pertain for schoolchildren who report misconduct by school employees while they are enrolled. That situation is qualitatively different from the present one inasmuch as schoolchildren are generally less sophisticated than adults as to matters of protocol and procedure, and they are in a substantially weaker position than adults in terms of their ability to protect themselves from unjust treatment at the hands of school employees. Accord Weissman, 462 N.Y.S.2d at 387.[8] Here, however, Addis
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was 26 years old and had graduated from high school more than seven years earlier when she communicated with O'Bannon. Therefore, such considerations do not apply with equal force.
For the foregoing reasons, in response to the certified question we hold that the judicial privilege does not apply to an allegation made by an adult before commencement of any quasi-judicial proceeding and without an intent that it lead to a quasi-judicial proceeding.[9]
The matter is returned to the Third Circuit.
I join the majority's analysis and result. I write only concerning speculation by my colleagues about a different result being possible, had appellee been a student at the time of her allegations. Respectfully, the purpose and applicability of the judicial privilege is not related to appellee's status; categorizing her as a student, past or present, or any other denomination, is irrelevant to application of this discrete privilege. The applicability of the judicial privilege depends on the existence of, or potential for, judicial-related proceedings at the time of utterance. Restatement (Second) of Torts, § 588 cmt. e (stating " the rule ... applies only when ... a proceeding ... is actually contemplated in good faith and under serious consideration by the witness" (emphasis added)). It matters not whether the speaker is old or young, tall or short, a student, teacher, doctor, lawyer, or Indian Chief.
This is not to say a broader privilege to speak out should not be afforded to students. However, if a privilege to encourage reporting based on status rather than circumstance is appropriate, that privilege should be articulated clearly and independently. No mere classification of the speaker creates a " judicial privilege," and that venerable privilege should not be contorted to fit a prospectively desirable result, whatever its salience.
I join the Majority Opinion. I write separately to emphasize that my position is firmly tied to the peculiar factual circumstances of the instant case. As noted by the majority, Jenna Addis was 26 years old and had been out of high school for more than 7 years when she told Susan O'Bannon
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that she had a relationship with Robert Schanne while she was a high school student. Had Addis been a student at the time she confided in O'Bannon, I might very well have reached a different result.
In comparison with other serious crimes, sexual misconduct victims of any age all too infrequently report their perpetrators due to systemic biases that disproportionately cast suspicion and blame upon them. The absolute judicial privilege should attach where, as here, a former student confides that she was sexually victimized by a school official to another school official who feels professionally obligated to report the statement to educational authorities, provided those details have a bearing on subsequent quasi/judicial proceedings. Therefore, under these circumstances, the student is the witness-declarant and the educational official is a possible party to the proceeding. The fact that Appellee could not mount the courage to name her alleged perpetrator until her twenties should not be used against her.
Section 588 of the Second Restatement of Torts holds:
A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.
Restatement (Second) of Torts § 588 (1977) (emphasis added). Regarding " communications preliminary to a proposed judicial proceeding," comment (e) notes:
[T]he rule stated in this Section applies only when the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding. The bare possibility that the proceeding might be instituted is not to be used as a cloak or to provide immunity for defamation when the possibility is not seriously considered.
Id. at cmt. e (emphasis added). Since the main definition designates the " witness" as declarant, it follows that the " possible party" may be the recipient. Comment (e) further clarifies that the intentions of the party-recipient may have a bearing on whether the privilege attaches to the witness-declarant.
In relation to Appellee, the majority characterizes Susan O'Bannon as " a friend who was employed by Lower Merion High School." Majority Opinion, slip op. at 1. However, the subjective nature of Appellee and O'Bannon's relationship is ultimately irrelevant. Independent of their friendship, O'Bannon was Appellee's ninth grade biology teacher and remains an educational professional who, upon reflection, felt obligated to report Appellee's allegations to educational authorities. As observed by the District Court, " [h]ad the allegation failed to produce such a reaction and no proceeding ever took place, its status as a privileged communication would be more problematic." Schanne v. Addis, 898 F.Supp.2d 751, 756 n.4 (E.D. Pa. 2012).
Here, Appellee's statements were " allegations that the school district seriously considered, investigated, and initiated a proceeding over . . . ." Id. After O'Bannon relayed Appellee's allegations to the appropriate authorities, Appellee fully cooperated with the ensuing investigation.
Appellant was not bereft of remedy, as he could, and did, file a grievance against the school district for wrongful discharge. The onus should be on school officials to conduct a thorough and responsible investigation
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before undergoing quasi/judicial proceedings.
I thereby respectfully dissent.
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First came "Jeff Goldblum is watching you poop" (now offline), but now there is a new mensroom voyeur in town: Christopher Walken. It's an art project of sorts: Print out the above picture, tape it above a urinal, and take a photo. (via WOW Report)
It would be funnier to take photos of people reacting to it, but I think cameras in an occupied mensroom are generally frowned upon.
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Dermatologic and Cosmetic Procedures in Office Practice, by Drs. Richard Usatine, John Pfenninger, Daniel Stulberg, and Rebecca Small, provides you with the clear, step-by-step guidance you need to provide these options to your patients. Full-color photographs and drawings in combination with high-definition narrated videos clearly demonstrate key procedures, including skin biopsies, cryosurgery, electrosurgery, botulinum toxin injections, and more. Access to the full text, and a downloadable image bank online at www.expertconsult.com make this an ideal reference for performing key dermatologic and cosmetic procedures in your practice.
DETTAGLI PRODOTTO torna su
Titolo: Dermatologic and Cosmetic Procedures in Office PracticeExpert Consult - Online and Print
Autori: Usatine - Pfenninger - Stulberg - Small
Editore: Elsevier - Saunders
Volume: Unico
Edizione: 2011
Lingua: Inglese
Finitura: Copertina rigida
Misure: 22x28 cm
Pagine: 544
Peso: 2 kg


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Spanish Rice Supper
Total Time
Prep 10 mins
Cook 40 mins
From 365 One Dish Meals. DH loves this sort of thing.
Ingredients Nutrition
- 1 lb ground beef
- 1 onion, chopped
- 1⁄2 green bell pepper, chopped
- 1 cup rice
- 1 (28 ounce) can tomatoes, undrained
- 1 (6 ounce) can tomato paste
- 1 cup water
- 2 teaspoons ground cumin
- 1⁄4 cup canned diced green chiles
- 1⁄2 teaspoon salt
- 1⁄4 teaspoon pepper
- In a skillet, cook beef, onion and green pepper over medium high heat until beef is browned, 8-10 minutes. Drain off excess fat.
- Stir in rice, tomatoes with their liquid, tomato paste, water, cumin and chiles.
- Heat to boiling, stirring occasionally.
- Reduce heat to low. Cover pan and simmer over low heat 30 minutes or until rice is tender. Stir in salt and pepper.
Most Helpful
My DH loves this sort of thing as well. Quick and easy to make, and I liked that it only requires one skillet to make. For me, the rice took slightly longer to cook (about 40 minutes).


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HomeMade Biscuits
cynthia davis
I used a heart shaped cookie cutter instead of a biscuit cutter, perfect for valentines day with strawberry jam
Featured Pinch Tips Video
- 4 c
- self-rising flour
- 2 Tbsp
- sugar
- 3 Tbsp
- baking powder
- 1/2 c
- crisco shortening
- 2 c
- milk or buttermilk
Directions Step-By-Step
1Preheat oven to 450 degrees
Sift flour, sugar, & baking powder together.
Using a fork cut shortening into flour mixture.
2Mix in milk or buttermilk with a fork until moisten.
3Form large ball. Put out on floured surface and knead a few times.
Roll out about 3/4-inch thick and cut with large (3-inch biscuit cutter.
4Place on greased baking sheet with sides of biscuits touching.
Bake at 450 degrees about 15 minutes. until brown
5Keep close eye on biscuits around the ten minute mark so the bottom does not burn