Stuart Hartman, D.O. and Hartman Rehabilitation Associates v. Rite Aid Corporation No. 2017-00682

Civil Action-Law-Pre-Complaint Discovery-Defamation-Statute of Limitations-Discovery Rule
Plaintiffs lodged a Praecipe for Writ of Summons with a Motion for Pre-Complaint Discovery in pursuit of an action in defamation pertaining to Defendants’ refusals to fill prescriptions for controlled substances written by Plaintiff Stuart Hartman, D.O. (“Dr. Hartman”) and statements of Defendants’ employees to patients of Dr. Hartman that Dr. Hartman is under investigation by the Drug Enforcement Agency for overwriting prescriptions for controlled substances and questioning the status of Dr. Hartman’s medical license.  In their Motion for Pre-Complaint Discovery, Plaintiffs seek information including the names of Defendants’ officers and employees who uttered the statements.
1.  Pa.R.C.P. Rule 4003.8 authorizes pre-complaint discovery when the information sought is material and necessary to the filing of a complaint and its production does not cause unreasonable annoyance, embarrassment or oppression.
2.  While Pennsylvania allows discovery to aid in preparing pleadings, it does not authorize a fishing expedition to determine whether a cause of action exists.
3.  Title 42 Pa.C.S. § 8343(a) provides that in an action for defamation, the plaintiff has the burden of proving:  (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff by its publication; and (7) abuse of a conditionally privileged occasion.
4.  When an action for defamation has been established against a defendant, the defendant has the burden of proving the truth of the defamatory communication, the privileged character of the occasion on which it was published or the character of the subject matter of defamatory comment as of public concern.  § 8343(b).
5.  A defamatory communication is one that tends to harm the reputation of another as to lower him or her in estimation of the community or to deter third persons from associating with him or her.
6.  Publication occurs when a defamatory statement is published or communicated to a third person.
7.  While the statute of limitations for a defamation action is one (1) year, the statute of limitations does not begin to run until the plaintiff has discovered his or her injury or should have discovered the injury by exercise of due diligence.
8.  Plaintiffs are in possession of sufficient information to allege the elements of a defamation cause of action in their Complaint such that the information sought is not reasonable and necessary and is more appropriately sought in post-pleading discovery.
9.  If Plaintiffs discover information during the normal discovery process supporting additional causes of action and/or parties who may be liable, they may seek to amend their Complaint or to file additional litigation based upon that information, as they may assert the application of the discovery rule to avoid the bar of the statute of limitations.
L.C.C.C.P. No. 2017-00682, Opinion by John C. Tylwalk, President Judge, August 18, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL DIVISION NO. 2017-00682

STUART HARTMAN, D.O. and HARTMAN REHABILITATION  ASSOCIATES, P.C.  v.
RITE AID CORPORATION, and RITE AID OF PENNSYLVANIA, INC.

ORDER OF COURT
AND NOW, this 18th day of August, 2017, upon consideration of Plaintiff’s Motion for Pre-Complaint Discovery, Defendants’ Response thereto, the Briefs submitted by the parties, and Oral Argument, it is hereby Ordered that said Motion is DENIED.  The Prothonotary is directed to issue a Rule upon Plaintiffs to file a Complaint within twenty (20) days of this Order.
BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:
MICHAEL BADOWSKI, ESQUIRE  FOR STUART HARTMAN, D.O.
MARGOLIS EDELSTEIN      AND HARTMAN REHABILITATION
ASSOCIATES, P.C.

BRIAN DOWNEY, ESQUIRE   FOR RITE AID CORPORATION
SIMONE DELERME, ESQUIRE  AND RITE AID OF PENNSYLVANIA, INC.
PEPPER HAMILTON LLP

OPINION, TYLWALK, P.J., AUGUST 18, 2017.
Plaintiffs instituted this action by Praecipe for Writ of Summons on April 19, 2017 and simultaneously filed a Motion for Pre-Complaint Discovery.  In the Motion, Plaintiffs explain that they contemplate a defamation action involving Defendants’ refusal to fill prescriptions written by Plaintiff Stuart Hartman, D.O. (“Dr. Hartman”) for certain controlled substances and statements allegedly made by Defendants’ employees to some of Dr. Hartman’s patients in front of other customers and to other pharmacies.  The substance of the alleged statements is that Dr. Hartman is under investigation by the Drug Enforcement Agency (“DEA”) for overwriting prescriptions for certain medications.  These statements also question the status of his license to write prescriptions.  Plaintiffs’ Motion avers that they require the names of the Rite Aid officers and employees who made representations regarding the status of his license and other information in order to prepare his Complaint and to identify other possible defendants and causes of action.
Defendants filed a Praecipe to Enter a Rule upon Plaintiffs to File Complaint on May 16, 2017.  On May 12, 2017, Defendants filed a Response opposing Plaintiffs’ Motion on the basis that the information sought is not necessary for the preparation of a Complaint and complaining that the request is overly broad and burdensome.  Defendants further complain that Plaintiffs’ with discovery prior to the filing of a Complaint will cause Defendants unnecessary time and expense and deprive them of the opportunity to file Preliminary Objections to have the action dismissed at the pleading stage.  The parties have filed Briefs in support of their respective positions. Oral Argument on the Motion was conducted on May 26, 2017, and the matter is before us for disposition.
Plaintiffs aver that Dr. Hartman has maintained his license and his practice in the field of physical medicine, rehabilitation, and pain management with no problems for thirty years and has never been the subject of any investigation by the DEA or other entity.  On April 11, 2016, he received a letter from Defendants notifying him of a unilateral decision to no longer fill prescriptions from his office for certain controlled substances, effective May 3, 2016.  Plaintiffs contend that the letter insinuated that his prescriptions, especially those for oxycodone, were leading to substance abuse among his patients.
Also, around May 2016, Dr. Hartman’s office began receiving patient complaints that Defendants would not fill valid prescriptions and that several of Defendants’ employees had made false statements regarding Dr. Hartman’s practice and the lawfulness of his prescriptions.  Plaintiffs believe that Defendants’ employees have also made such comments to other pharmacies, which subsequently refused to fill prescriptions.  Plaintiffs claim that none of the representations made by Defendants’ employees to third parties were true and that, as a result, Dr. Hartman and his practice have been defamed.
The Motion sets forth several specific instances where patients were given this information by various employees at various Rite Aid locations.  In order to prepare the complaint, Plaintiffs argue that they need the names of the employees described in these incidents so that they can be sued individually or can identify them individually in the Complaint.  In addition, Plaintiffs claim to need all written correspondence, emails and records, and other items reviewed and generated by these and other Rite Aid employees to determine what led other pharmacies to dishonor his prescriptions.   Plaintiffs argue that they would be unduly prejudiced without this information and they run the risk of omitting necessary defendants and/or causes of action in the Complaint.  Plaintiffs respond to Defendants’ objections, arguing that this request is not burdensome as the information is easily accessible to Defendants through their data base and records.
Pa.R.C.P. No. 4003.8 provides for pre-complaint discovery when (1) the information sought is material and necessary to the filing of a complaint, and (2) its production does not cause unreasonable annoyance, embarrassment, oppression.  Pa.R.C.P. No. 4003.8(a). 1  Pa.R.C.P. No. 4003.1(a) permits discovery of matters relevant in the pending action.  Pa.R.C.P. No. 4003.1(a) (emphasis supplied).  While Pennsylvania allows discovery to aid in preparing pleadings, this does not “authorize a ‘fishing expedition’ to determine whether a cause of action exists.” Frankenberry v. Ferguson, 2017 WL 2960380 (Pa. Commw. July 12, 2017) (unpublished Memorandum Opinion), citing Luckett v. Blaine, 850 A.2d 811, 818 (Pa. Commw. 2004) and Pa.R.C.P. No. 4001(c).
With regard to a cause of action for defamation, 42 Pa.C.S.A. §8343 provides:
§ 8343. Burden of proof
(a) Burden of plaintiff.–In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
(b) Burden of defendant.–In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:
(1) The truth of the defamatory communication.
(2) The privileged character of the occasion on which it was published.
(3) The character of the subject matter of defamatory comment as of public concern.
42 Pa.C.S.A. & 8343.  Under Pennsylvania law, a “defamatory communication” is one that tends to harm the reputation of another as to lower him in estimation of the community or to deter third persons from associating with him.  Wilson v. Slatalla, 970 F.Supp. 405. (E.D. Pa. 1997).   Statements alleged to be defamatory must be viewed in context. Baker v. Lafayette Coll., 516 Pa. 291, 532 A.2d 399 (1987).   Publication occurs when a defamatory statement is either “published or communicated to a third person.” Elia v. Erie Ins. Exch., 634 A.2d 657, 660 (Pa.Super.1993).  The statute of limitations for defamation actions in Pennsylvania is one year, 42 Pa.C.S.A. § 5523(1), but Pennsylvania employs a “discovery rule” in such actions: the statute of limitations does not, therefore, begin to run until “the plaintiff has discovered his injury or, in the exercise of reasonable diligence, should have discovered his injury.” DiNicola v. DiPaolo, 945 F.Supp. 848, 861 (W.D.Pa.1996).
We believe Plaintiffs are in possession of sufficient information to allege the elements of a cause of action in defamation at this juncture and that the information sought is not “reasonable and necessary” for the preparation of a Complaint.  Defendants aver that Defendants’ employees (1) made statements regarding Dr. Hartman’s integrity as a physician which tended to be harmful to his reputation in the community or which would deter others, i.e., patients and prospective patients, from seeking his services and which would deter other pharmacies from honoring his prescriptions; (2) these comments were communicated to Defendants’ patients and other pharmacies; (3) the third parties understood these comments to pertain to Dr. Hartman as evidenced by patients reporting them to the office and other pharmacies refusing to fill prescriptions; (4) the recipients understood that these comments were of a derogatory nature; (5) the third parties understood that these  comments reflected on Dr. Hartman’s professionalism; (6) Plaintiffs have suffered harm as these comments have placed a limitation on the practice of Dr. Hartman’s profession.
The final element of a defamation claim is the abuse of a conditionally privileged occasion:
However, this element is only applicable where a defendant proves a conditional privilege, since the statute states that “[i]n an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised [,] … [a]buse of a conditionally privileged occasion.” The statute further indicates that the issue of abuse is only properly raised when the defendant meets the “burden of proving … [t]he privileged character of the occasion on which [the defamatory communication] was published.” In other words, the plaintiff is only required to prove abuse of a conditional privilege after the defendant has proven that a conditional privilege applies. Thus, Plaintiff does not necessarily have to plead this element in a defamation complaint.
Rivera v. YMCA-Bethlehem, 2013 WL 10871993, 34 Pa. C. & C. 5th 250 (C.C.P. Northampton Cnty. 2013) (citations omitted, emphasis in original).   Thus, although Defendants have indicated that any communications, if made, would have been made subject to a conditionally privileged occasion, Plaintiffs are not required to plead an abuse of that privilege when filing their Complaint.
We agree with Defendants that discovery of the type of information requested in Plaintiffs’ Motion is more appropriate for post-pleading discovery.  Plaintiffs seek information beyond what is material and necessary to file the complaint and they seek these records hoping to find additional claims and/or liable parties. We do not believe that the identity of the individual employees to whom the comments are attributed is crucial to the formulation of Plaintiffs’ Complaint as that information may be obtained through normal discovery process.  Plaintiffs are not entitled to embark on a “fishing expedition” in hopes of finding additional causes of action and other parties who may be liable to them at the time and expense of the Defendants in this action.  If, during the normal discovery process, Plaintiffs develop information which indicates additional causes of action and/or parties who may be liable to them, they can seek to amend their Complaint or file additional litigation based upon that information.  As noted, Plaintiffs may claim the application of the discovery rule to avoid the bar of the statute of limitations to such claims.    However, at this point in this proceeding we will not require the Defendants to conduct or aid in Plaintiffs’ investigation into such other matters.
Defendants have also indicated a possible basis for filing preliminary objections to a Complaint in defamation.  We agree that they should have the opportunity to seek dismissal of this action before incurring additional expense in discovery proceedings.   For these reasons, we will enter an order denying Plaintiffs’ Motion and directing the Prothonotary to issue a rule upon Plaintiffs to file a Complaint within twenty days.
1  In McNeil v. Jordan, 586 Pa. 413, 894 A.2d 1260 (2006) the Supreme Court of Pennsylvania addressed the governing standard for pre-complaint discovery and concluded:

Accordingly, to obtain pre-complaint discovery a litigant should be required to demonstrate his good faith as well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending action. A plaintiff should describe with reasonable detail the materials sought, and state with particularity probable cause for believing the information will materially advance his pleading, as well as averring that, but for the discovery request, he will be unable to formulate a legally sufficient pleading.

Under no circumstance should a plaintiff be allowed to embark upon a “fishing expedition,” or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to the pre-complaint discovery process under this standard. The reasonableness of a given request, as well as the existence of probable cause and the good faith of the party seeking discovery, are matters for the trial court to determine in the exercise of its sound discretion.  Id., at 443-444, 894 A.2d at 1278.

The McNeil Court referred the issue of pre-complaint discovery to its “Civil Procedural Rules Committee to consider the adequacy of Rules 4001 (c) and 4007(c) vis-à-vis pre-complaint and pre-amended complaint discovery, and to recommend any amendments that might clarify this vexing area of civil procedure.” McNeil, supra at 445 n. 27, 894 A.2d at 1279 n. 27. Following a review and recommendation by the Civil Procedural Rules Committee, the Supreme Court adopted Pa. R.C.P. 4003.8 which became effective November 1, 2007. Rule 4003.8 provides that a plaintiff may obtain pre-complaint discovery “where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.” Pa. R.C.P. 4003.8(a). Although the first prong of the pre-complaint discovery test set forth in Rule 4003.8 incorporates the “material and necessary to the filing of a complaint” prerequisite established in McNeil, it does not include the “probable cause” requirement referenced in McNeil. See, 2007 Explanatory Comment to Pa. R.C.P. 4003.8. The second prong of the new standard — that the discovery not cause “unreasonable annoyance, embarrassment, oppression, burden or expense” — is derived from Pa. R.C.P. 4011 (b) governing limitations on discovery.
Rader v. Hospital Service Association of Northeastern Pennsylvania, 2011 WL 1131486 (C.C.P. Lackawanna Cnty. 2011).  Subsection (b) of Rule 4003.8 provides:
(b) Upon a motion for protective order or other objection to a plaintiff’s pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought.
Pa.R.C.P. No. 4003.8(b).