Lichty v. Kucharczuk

5 Pa. D. & C.4th 120, 1989 Pa. Dist. & Cnty. Dec. LEXIS 49
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedOctober 31, 1989
Docketno. 1989-C-4737
StatusPublished

This text of 5 Pa. D. & C.4th 120 (Lichty v. Kucharczuk) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lichty v. Kucharczuk, 5 Pa. D. & C.4th 120, 1989 Pa. Dist. & Cnty. Dec. LEXIS 49 (Pa. Super. Ct. 1989).

Opinion

FREEDBERG, J.,

This matter is before the court for disposition of defendants’ preliminary objections in the form of demurrers and motions to strike, or in the alternative, a motion for a more specific pleading. According to the complaint, on January 23, 1987, Linda Lichty, who was pregnant with her fourth child, consulted with, defendants, Dr. Kucharczuk and Dr. Smith, about her pregnancy. These doctors had delivered Mrs. Lichty’s third child, Amber, in 1984. Amber was bom with a neural tube defect, known as anenceph-aly, and died immediately after birth. Because defendants were aware of Mrs. Lichty’s problem with her third child, they undertook certain testing during her fourth pregnancy which revealed that the then-unborn plaintiff, Jenine Lichty, had a neural tube defect. Plaintiff claims that defendants did not perform all the testing which should have been performed. Furthermore, plaintiff alleges that defendants advised Mrs. Lichty that the baby would be normal. Plaintiff claims that as a result of this, Mrs. Lichty was deprived of an opportunity of having specialized physicians assist at the plaintiffs birth which resulted in injury to the plaintiff. For this she seeks compensatory damages in count I.

Plaintiff also claims that defendants, after the birth of plaintiff, created documents designed to appear as though they had been created on January 23, 1987, with the intent of falsifying the medical record, deceiving anyone who read the medical record and fraudulently defeating a potential lawsuit which they suspected, or had reason to suspect, would be filed against them by Mrs. Lichty. For this she seeks punitive damages in count II.

Defendants first preliminary objection is in the nature of a demurrer or, in the alternative, a motion to strike regarding plaintiff’s count II for fraud, [122]*122breach of fiduciary duty, and intentional spoliation under the circumstances alleged in her complaint. Defendants claim that under the facts of this case, the Commonwealth of Pennsylvania does not recognize a cause of action for intentional spoliation, so that punitive damages are not available. Defendants also object in the nature of a motion to strike, or in the alternative, a motion for a more specific pleading regarding paragraphs 15(a), (b), (n), (o), (p), (s), (t), (v), (w), and (x) in plaintiffs complaint.

Defendants first preliminary objection is a demurrer to count II of plaintiff s complaint, asserting that a cause of action for intentional spoliation (i.e. the destruction, mutilation or alteration of evidence by a party to an action) under the facts of this case does not exist. A preliminary objection in the nature of a demurrer admits all well pleaded facts, as well as all reasonable inferences therefrom, and may not be sustained unless it is clear on the face of the pleading that the law will not permit the recovery sought. Thus, any doubts as to whether such an objection should be sustained must be resolved against the moving party. Chartiers Valley School District v. Virginia Mansions Apartments, 340 Pa. Super. 285, 293, 489 A.2d 1381, 1386 (1985). Plaintiffs malpractice suit has not been disposed of adversely to plaintiff.

We hold that no cause of action for spoliation exists where the alleged spoliation is known prior to the trial of the principal case and the alleged spoli-ator is a party to that case.

In so holding, we note that no civil cause of action for false oral testimony is permitted in this jurisdiction. The Pennsylvania Supreme Court in Ginsburg v. Halpern, 383 Pa. 178, 180, 118 A.2d 201, 202 (1955) held:

“Even if defendants had been shown to have [123]*123volunteered to be witnesses and then [gave] false testimony against plaintiff [it] would not constitute a valid cause of action. . . . We believe there is no civil action for perjury and apparently the plaintiff recognizes this doctrine of law but seeks to avoid it by claiming conspiracy. The courts have uniformly held that where such assertions have been made . . . they do not constitute a cause of action.”

More recently, the Pennsylvania Superior Court in Pelagatti v. Cohen, 370 Pa. Super. 422, 432, 536 A.2d 1337, 1342 (1987), held that “it is well settled that private witnesses, as well as counsel, are absolutely immune from damages liability for testimony, albeit false, given or used in judicial proceedings.” Additionally, trial courts in Homer v. Ciamacco, 2 D.&C. 3d 755 (1977) and Barr v. Susquehanna Broadcasting Co., 45 D.&C. 3d 622 (1987) held that no civil cause of action for perjury exists. Because Pennsylvania does not recognize a civil cause of action for false oral evidence, we believe that a cause of action for false physical evidence should not be recognized. See Annotation, Spoliation of Evidence, 70 ALR 4th 984 (1989).

Second, a sufficient sanction to discourage spoliation already exists. 18 Pa.C.S. §4910 provides criminal sanctions for a party who tampers with or fabricates physical evidence.

Third, a party who knows of the spoliation by an opposing party can effectively impeach his opponent at trial. A neighboring jurisdiction has observed:

“The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that evidence would have been unfavorable to his [124]*124cause, but would not in itself amount to substantive proof of a fact essential to his opponent’s cause. The maxim, omnia praesumuntur contra spoliatorem, ‘all things are presumed against the spoliator,’ rests upon a logical proposition that one would ordinarily not destroy evidence favorable to himself.” Miller v. Montgomery County, 494 A.2d 761, 768 (Md. App. 1985). In the instant case, plaintiff can effectively employ the alleged spoliation at trial to undermine the credibility of defendants, who allegedly committed the act. Thus, there is no need for a separate cause of action for spoliation under these facts.

Finally, since no cause of action for spoliation exists, a cause of action for fraud and breach of fiduciary duty based on spoliation cannot be maintained by a party. See Ginsburg v. Halpern, supra.

For these reasons, the demurrer to the cause of action for punitive damages for spoliation is sustained.

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Related

Kirkbride v. Lisbon Contractors, Inc.
555 A.2d 800 (Supreme Court of Pennsylvania, 1989)
Ginsburg v. Halpern
118 A.2d 201 (Supreme Court of Pennsylvania, 1955)
Pelagatti v. Cohen
536 A.2d 1337 (Supreme Court of Pennsylvania, 1987)
Miller v. Montgomery County
494 A.2d 761 (Court of Special Appeals of Maryland, 1985)
Connor v. Allegheny General Hospital
461 A.2d 600 (Supreme Court of Pennsylvania, 1983)
Chartiers Valley School District v. Virginia Mansions Apartments, Inc.
489 A.2d 1381 (Superior Court of Pennsylvania, 1985)

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Bluebook (online)
5 Pa. D. & C.4th 120, 1989 Pa. Dist. & Cnty. Dec. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lichty-v-kucharczuk-pactcomplnortha-1989.