1

Plaintiff’s counsel indicated that Ms. Flamm will withdraw her putative

claims against Leonard Sarner.

2

Defendant Brown was terminated on October 27, 2004, pursuant to “praecipe

to mark case settled, discontinued and ended as to Dr. Jodi Brown by Mara Flamm”

(Docket Entry No. 62).

-1-

IN THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

MARA FLAMM, : CIVIL ACTION

:

 Plaintiff, : NO. 02-4302

:

v. :

:

SARNER & ASSOCIATES, P.C. and :

JOSHUA SARNER, ESQUIRE and :

LEONARD SARNER, ESQUIRE and :

JODI H. BROWN, M.D. and JOHN :

MATUSAVAGE :

:

Defendants. :

______________________________:

MEMORANDUM

M. FAITH ANGELL January 3, 2006

CHIEF UNITED STATES MAGISTRATE JUDGE

On March 7, 2003, the parties in this action filed a consent

to jurisdiction by a United States Magistrate Judge, and, on March

11, 2003, the matter was referred to me by the Honorable Herbert J.

Hutton for all further proceedings and the entry of judgment. See

Docket Entries 44 and 46. Presently before this court is a motion

for summary judgement filed by Defendants Sarner & Associates, PC;

Joshua Sarner and Leonard Sarner1 (Sarner Defendants), and a motion

for summary judgment filed by Defendant John Matusavage.2 Upon

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 1 of 19
3

The factual background is compiled from a review of the complaint,

Defendants’ answers with new matter and crossclaims, replies to the crossclaims,

the amended complaint, as well as the Defendants’ motions for summary judgment

and Plaintiff’s omnibus response, inclusive of all exhibits thereto, and the

court record. All facts, and reasonable inferences therefrom, are considered in

the light most favorable to the non-moving party.

-2-

consideration of these motions, the Plaintiff’s omnibus response,

the record, and the applicable case law, and as discussed more

fully below, Defendants’ motions will be denied.

I. FACTUAL BACKGROUND3

The history of this case was set forth by the Honorable Lowell

A. Reed, Jr. in his Memorandum and Order dated November 6, 2002, in

which he granted in part and denied in part Defendants’ motions to

dismiss, as follows:

Plaintiff Mara Flamm (Ms. Flamm) was sued

by Dr. Brown in the Municipal Court of

Philadelphia County for $5000. On or about

April 4, 2001, the Municipal Court of

Philadelphia County entered a default judgment

in favor of Dr. Brown and against Ms. Flamm in

the amount of $6,215 plus $65 in costs. On or

about October 26, 2001, Mr. Matusavage served

a Notice of Deposition in Aid o[f] Execution

(Notice) on plaintiff by leaving a copy with

plaintiff’s supervisor at Peirce College where

plaintiff was employed. Mr. Matusavage

informed plaintiff’s supervisor that plaintiff

owed a large debt to a doctor.

On January 25, 2002, Mr. Matusavage again

appeared at Peirce College and demanded to see

plaintiff, plaintiff’s supervisor, the Dean of

the College, and their secretaries. Carmita

Rutling (Ms. Rutling), an administrative

assistant of Peirce College, spoke with the

process server at the request of campus

security. Mr. Matusavage asked Ms. Rutling to

accept a package on behalf of plaintiff and

further requested to speak with Ms. Rutling in

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 2 of 19
-3-

private. Upon following her to a room near

by, he began to yell in a loud and aggressive

tone. Mr. Matusavage stated, “I don’t know

what type of sneaky little thieves you hire,

but Mara Flamm stole thousands of dollars from

a doctor and hasn’t paid.” He complained that

he and the Sarner Defendants had been going to

Peirce College for over two years and that

plaintiff was always unavailable. When Ms.

Rutling advised Mr. Matusavage that the

information was none of her business, and that

he should contact plaintiff at home, Mr.

Matusavage remarked that plaintiff had given

them a false home address and phone number.

He further stated that plaintiff had received

services for which she refused to pay and that

she failed to appear in court. Mr. Matusavage

then reiterated that plaintiff was a thief,

and that if plaintiff was the type of person

Peirce College had working for them, the

school was in trouble. Finally, he requested

that Ms. Rutling inform plaintiff that the

next time they had to go to her place of

employment, they would bring a sheriff and

have plaintiff arrested. Flamm v. Sarner &

Associates, 2002 WL 31618443 *1 (E.D.Pa.

November 6, 2002) (internal footnotes

omitted).

II. MOTION FOR SUMMARY JUDGMENT

In their motion for summary judgment, the Sarner Defendants

make the following argument concerning Ms. Flamm’s claims:

1. The Sarner Defendants are not “debt collectors” within the

meaning of the Fair Debt Collection Practices Act (FDCPA) and

cannot be held liable under that statute.

2. The Sarner Defendants cannot be held liable for the

actions of their independent contractor, John Matusavage.

3. The Sarner Defendants cannot be held liable under the

FDCPA for the service of legal process alone.

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 3 of 19
-4-

4. Plaintiff cannot set forth a cause of action under the

Unfair Trade Practices and Consumer Protection Law (CPL) in the

absence of ascertainable damages to money or property.

5. Plaintiff cannot set forth a claim of defamation in the

absence of damage to Plaintiff’s reputation.

6. Plaintiff cannot set forth a claim for conspiracy in the

absence of an agreement between the parties to commit an unlawful

act. See Sarner Defendants Memo at i-ii.

In Mr. Matusavage’s motion for summary judgment, he moves the

Court to enter summary judgment in his favor on all claims for the

reasons set forth in the Sarner Defendants’ motion for summary

judgment, excepting their “overly-restrictive vicarious liability

argument”. See Matusavage Motion at [1].

III. DISCUSSION

A. Legal Standard

Summary judgment is only appropriate when there exists no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(e)

When the non-moving party bears the burden of persuasion at

trial, the moving party may meet its burden on summary judgment by

showing that the nonmoving party’s evidence is insufficient to

carry its burden of persuasion at trial. See Brewer v. Quaker

State Oil Refining Corp., 72 F.3d 326, 329 (3rd Cir. 1995); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.C. 2548,

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 4 of 19
-5-

2552-53, 91 L.Ed.2d 265 (1986). A nonmoving party creates a

genuine issue of material fact when it provides evidence “such that

a reasonable jury could return a verdict for the non-moving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.C. 2505,

2510, 91 L.Ed.2d 202 (1996). See also Lawrence v. National

Westminster Bank of New Jersey, 98 F.3d 61, 65 (3d Cir. 1996).

B. Analysis

(1) Whether the Sarner Defendants are “Debt Collectors”

within the meaning of the Fair Debt Collection Practices

Act(FDCPA), 15 U.S.C. § 1692 et seq. and can be held

liable under that statute.

The Sarner Defendants claim that they are not “debt collectors

withing the meaning of the FDCPA, and, consequently, they cannot be

held liable under that statute. Ms. Flamm asserts that the facts

herein belie that contention.

“The stated purpose of the FDCPA is to ‘eliminate abusive debt

collection practices by debt collectors, to insure that those debt

collectors who refrain from using abusive debt collection practices

are not competitively disadvantaged, and to promote consistent

State action to protect consumers against debt collection abuses.’

15 U.S.C. § 1692(e).” Flamm, 2002 WL 31618443 at *2. “It is

uncontested that the money owed by Ms. Flamm constitutes a ‘debt’

as defined in 15 U.S.C. § 1692a(5).” Id. The Sarner Defendants,

however, assert that they are not “debt collectors” within the

meaning of the statute. The FDCPA states that a debt collector is:

Any person who uses any instrumentality

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 5 of 19
4

From 1998 to 2002, collections cases represented nine (9) of the 273 cases

that Joshua Sarner personally opened and worked on at Sarner & Associates, or

3.2% of these cases. Collections cases represented four (4) of the 224 clients

that he personally represented or 1.7% of all clients that he personally

represented during that period. Collections cases represented 3% of the revenues

-6-

of interstate commerce or the mails in any

business, the principal purpose of which is

the collection of debts, or who regularly

collects or attempts to collect, directly or

indirectly, debts owed to or due to another.

115 U.S.C. § 1692(a)B.

The Sarner Defendants aver that Ms. Flamm cannot prove that they

“regularly attempt to collect debts alleged to be due another” as

she alleges. Complaint, ¶ 4.

As both Ms. Flamm and the Sarner Defendants have made clear,

there is no bright line rule as to what percentage of one’s

practice comprising collection cases satisfies the term

“regularly.” Silva v. Mid-Atlantic Management, 277 F.Supp.2d 460

(E.D.Pa. 2003) and Crossley v. Lieberman, 868 F.2d 566 (3rd Cir.

1989) provide some guidance on this issue. The court in Silva

found that the defendant attorneys were debt collectors, despite

less than 1% of their practice being devoted to such, due to their

consistent solicitation and acceptance of debt collection matters.

See Silva, 277 F.Supp at 464. In Crossley, the defendant accepted

several debt collection cases per year and also had an ongoing

relationship with one client for whom he consistently handled debt

collection cases. See Crossley, 868 F.2d at 570.

The Sarner Defendants have a law practice that consistently

has a small percentage of debt collection cases.4 They contend,

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 6 of 19
that he personally generated. See Sarner Defendants Memo, Exhibit 1 at [6].

5

Id. at [2]; Exhibit 2 at 90; 158.

-7-

however, that a majority of their debt collection cases, 80% in the

2000-2002 period, was for just one client. These statistics show

a consistent taking and handling of debt collection cases from one

individual (Dr. Brown) while retaining an active, albeit small,

practice of solicitation from the area at large.

Though the Sarner Defendants assert that they do not market

themselves as collections attorneys and do not presently accept

collections cases,5 the Philadelphia Bar Association’s Lawyer

Referral Service lists Joshua Sarner as an individual who accepts

debt collection cases. See Sarner Defendants Memo, Exhibit 2 at

86-91. Further, Joshua Sarner does not preclude the possibility of

accepting future debt collection cases. See Sarner Defendants

Memo, Exhibit 2 at 90.

From the evidence presented, a reasonable jury could find that

the Sarner Defendants are debt collectors under the FDCPA. On this

basis, the granting of a motion for summary judgment on this claim

would be inappropriate.

(2) Whether the Sarner Defendants can be held liable for the

actions of John Matusavage.

It has been alleged that Defendant Matusavage acted improperly

when he served the Notice of January 25,2002,at Peirce College. 

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 7 of 19
6

Judge Reed discussed Mr. Matusavage’s status as a “debt collector” vs.

“process server” as follows:

I find that a person who goes beyond being merely a messenger in

serving legal process and engages in prohibited abusive or harassing

activities to force an individual to repay a debt is no longer

exempt under the legal process server exception. At that point, he

steps beyond the bounds of the official duties inherent in serving

process and takes on a secondary role of “debt collector” as defined

within the statute. To find otherwise would both “stretch the

statutory language” and “significantly impede the statute from

remedying the ‘mischief’ to which it was addressed.” Based upon the

protective purposes of the FDCPA and the facts as alleged in the

complaint, I find that Mr. Matusavage is not exempt from liability

through his process server status. Flamm, 2002 WL 31618443 at *5.

7

See Sarner Memo at 18.

-8-

Ms. Flamm asserts that he did so as a debt collector6 employed by

the Sarner Defendants,7 thus making them vicariously liable for his

actions which allegedly violated the FDCPA. Defendants respond

that Matusavage was not an employee of the Sarner Defendants, but

he was an independent contractor. As a result, the Sarner

Defendants cannot be held responsible for his actions.

As the Third Circuit stated in Pollice v. National Tax

Funding, LP, 225 F.3d 379 (3d Cir. 2000), “[a]lthough there is

relatively little case law on the subject of vicarious liability

under the FDCPA, there are cases supporting the notion that an

entity which itself meets the definition of “debt collector” may be

held vicariously liable for unlawful collection activities carried

out by another on its behalf.” Id. at 404. The Court notes that

the Ninth Circuit, in Fox v. Citicorp Credit Services, Inc., 15

F.3d 1507 (9th Cir. 1994)found that “a company which had been asked

to collect a defaulted debt could be held vicariously liable for

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 8 of 19
8

Ms. Flamm does not address this issue in her Omnibus Response to

Defendants’ motions for summary judgment.

-9-

its attorney’s conduct which was in violation of the FDCPA”.

Pollice, 225 F.3d at 404. However, the Sixth Circuit, in

Wadlington v. Credit Acceptance Corporation, 76 F.3d 103, 108 (6th

Cir. 1996), declined to impose vicarious liability on a company

which did not meet the definition of “debt collector”.

It must first be decided whether or not the Sarner Defendants

fall within the regulatory provisions of the FDCPA before it can be

decided if they are vicariously liable for Mr. Matusavage’s

actions. The granting of a motion for summary judgment for this

claim would be inappropriate.

(3) Whether the Sarner Defendants can be held liable under

the FDCPA for the service of legal process alone.

Ms. Flamm alleges that Defendants’ attempt to serve process

upon her was improper under the FDCPA and the CPL in that Mr.

Matusavage tried to contact her at her place of employment, without

prior consent. when Defendants knew she was represented by counsel.

See Complaint at ¶¶ 49(a), 49(d).8 The Sarner Defendants assert

that Mr. Brand did not identify himself as counsel to Ms. Flamm

until March 25, 2002. See Sarner Defendants Memo, Exhibit 17.

Pennsylvania Rule of Civil Procedure 440(a)(2)(i) states:

If there is no attorney of record, service

shall be made by handing a copy to the party

or by mailing a copy to or leaving a copy for

the party at the address endorsed on an

appearance or prior pleading or the residence

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 9 of 19
9

The Consumer Protection Law states in pertinent part:

Any person who purchases or leases goods or services

primarily for personal, family or household purposes and

thereby suffers any ascertainable loss of money or

property, real or personal, as a result of the use or

employment by any person of a method, act or practice

declared unlawful by section 3 of this act, may bring a

private action to recover actual damages or one hundred

dollars ($100), whichever is greater. The court may, in

its discretion, award up to three times the actual

damages sustained, but not less than one hundred dollars

-10-

or place of business of a party.

The disagreement among the parties in regard to whether or not Ms.

Flamm was represented by counsel at the time of Mr. Matusavage’s

service of process at Peirce College is evident.

Were this issue resolved, and if it was determined that

Defendants were subject to the FDCPA, a reading of 15 U.S.C.A. §

1692a(6)(D) would exempt from the definition of “debt collector”

“any person while serving or attempting to serve legal process on

any other person in connection with the judicial enforcement of any

debt”. Judge Reed, however, found Mr. Matusavage to fall within

the parameters of the definition “debt collector”, rather than mere

process server.

Due to these unresolved questions, a granting of summary

judgment on this claim is unwarranted.

(4) Whether Ms. Flamm can set forth a cause of action under

the CPL.

Defendants assert that Ms. Flamm has not experienced any

“ascertainable loss of money or property”, and, therefore, is not

able to recover damages under the CPL.9 Needless, to say, she

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 10 of 19
($100), and may provide such additional relief as it

deems necessary or proper. The court may award to the

plaintiff, in addition to other relief provided in this

section, costs and reasonable attorney’s fees. 73 P.S.

§ 201-9.2(a).

-11-

disagrees.

“[D]ebt collection has been deemed to be activities within

trade or commerce as regulated under the [CPL].” Flamm, 2002 WL

31618443 at *6.

Further, pursuant to the [CPL], the

Pennsylvania Fair Credit Extension Uniformity

Act (“PFCEUA”), 73 Pa.C.S. §§ 2270.1 et seq.,

was passed and became effective in June 2000.

The PFCEUA established what activities

constitute “unfair methods of competition and

unfair or deceptive acts or practices with

regard to the collection of debts.” 73

Pa.C.S. § 2270.2. Under the PFCEUA, any act

of a debt collector that violates any of the

provisions of the FDCPA also violates the

PFCEUA. See 73 Pa.C.S. § 2270.4(a). Thus, to

the extent plaintiff has alleged a FDCPA claim

against the Sarner Defendants and Mr.

Matusavage, she has also stated a claim under

the PFCEUA and [CPL] for relief. Id.

It remains for Ms. Flamm to present to a jury her “ascertainable

damages” for which she may recover “actual damages or one hundred

($100), whichever is greater”. Defendants’ motions for summary

judgment will be denied for this claim.

(5) Plaintiff’s defamation claim

Defendants aver that Ms. Flamm cannot set forth a claim of

defamation in the absence of damage to her reputation. Ms. Flamm

finds this argument meritless and states that she “suffered

physical, emotional and/or psychological harm” due to the actions

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 11 of 19
-12-

of the Sarner Defendants and Mr. Matusavage. See Plaintiff’s

Omnibus Response at [23].

Under Pennsylvania law, in a cause of action claiming

defamation, the plaintiff must establish: “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; and 7) abuse of a conditionally privileged occasion.”

42 Pa. C.S.A. § 8343(a). See also Pennoyer v. Marriott, 324

F.Supp.2d 614 (E.D.Pa. 2004); Tucker v. Fischbein, 2005 WL 67076

(E.D.Pa. 2005). 

A statement is defamatory ‘if it tends to so

harm the reputation of another as to lower him

in the estimation of the community or to deter

third persons from associating or dealing with

him. Flamm, 2002 WL 31618443 at *7 (internal

quotations omitted).

“Under Pennsylvania law, it is for the court to determine whether

the statement at issue is capable of defamatory meaning.”

Pennoyer, 324 F.Supp.2d at 618.

As previously stated, one of the requirements of a defamation

claim is a showing of “special harm” to the plaintiff as a result

of its publication. “[S]pecial harm” is defined as ‘actual damages

which are economic or pecuniary losses.’” Id. (quoting Sprague v.

Am. Bar Ass’n., 276 F.Supp.2d 365, 368-69 (E.D.Pa. 2003) (quoting

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 12 of 19
-13-

Restatement (Second) of Torts, § 575, cmt. b (1997)). However, in

Pennsylvania, there is an exception to the “special harm”

requirement for slander actions - claims made on oral defamation.

See Pennoyer, 324 F.Supp.2d at 618.

A plaintiff may succeed in a claim for

defamation absent proof of special harm where

the spoken words constitute slander per se.

There are four categories of words that

constitute slander per se: words that impute

(1) criminal offense, (2) loathsome disease,

(3) business misconduct, or (4) serious sexual

misconduct. Id. (citations omitted).

“Under Pennsylvania law, a defendant who publishes a statement

which can be considered slander per se is liable for the proven,

actual harm that the publication causes. To show actual damages in

a defamation claim, the plaintiff must show competent proof.” Id.

(emphasis in original).

Actual damages are divided into two

types: general and special. “General” damages

typically flow from defamation, such as:

impairment of reputation and standing in the

community, personal humiliation, and mental

anguish and suffering. The Restatement

(Second) of Torts requires a victim of slander

per se to make some showing of general damage,

although he need not prove “special damage”.

Proof of general damages is required, since it

accommodates the Court’s interest in

maintaining some type of control over the

amount that a jury should be entitled to

compensate an injured. In determining if a

plaintiff has demonstrated any loss to

reputation, it must be measured by the

perception of others, rather than that of the

plaintiff himself because reputation is the

estimation in which one’s character is held by

his neighbors or associates. Pennoyer, 324

F.Supp.2d at 619.

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 13 of 19
10 A. So I waited a few minutes, ten, five, ten minutes and Professor

Flamm didn’t show up. And I asked him to call the supervisor. And security got

on the phone and I spoke with a Miss Rutling for a few minutes.

She says, “I’ll be right down.”

She came down. And I says, “Miss Rutling, I have this document for

Professor Flamm. Is there a place we can talk privately? I want to make sure

she gets this.”

So we went into a little side room.

I says, “Miss Rutling, this is for Professor Flamm. I’ve been here before.

I haven’t found her because she’s not here. She’s supposed to be teaching and

she’s not there.” I said, “Could you make sure she gets this?”

She says, “Okay”.

I said, “Thank you” and out the door I went

Q. Do you recall raising your voice to Miss Rutling?

A. No. 

Q. Do you recall making any statements about Miss Flamm?

A. No.

. . . . .

Q. Did you tell Miss Rutling that Miss Flamm was a dirty little thief?

A. No.

. . . . .

Q. When you spoke with Carmita Rutling on January 24, 2002, you didn’t

tell Miss Rutling that Miss Flamm owed six thousand dollars to a doctor?

A. No, I did not.

Q. When you spoke with Miss Rutling, you didn’t tell Miss Rutling that

Miss Flamm had been giving different names or addresses to people?

A. No, I did not.

Q. You did not yell at Miss Rutling?

-14-

Ms. Flamm “alleges that Mr. Matusavage characterized her as a

‘thief’ who stole thousands of dollars from a doctor.” Flamm, 2002

WL 31618443 at *7. If these characterizations were, in fact, made,

they would certainly constitute slander per se. However, Mr.

Matusavage, under oath, states that he did not call Ms. Flamm a

thief,10 and Ms. Rutling, also under oath, states that he did make

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 14 of 19
A. No, I did not.

Q. You did not tell Miss Rutling that a sheriff would come and arrest Miss

Flamm?

A. No, I did not.

Q. And you did not call Mis Flamm a sneaky little thief?

A. No, I did not.

N.T. 1/17/05 at 55-56, 68-69.

11A. So I went into one of the empty offices on the first floor, it was

just like a round the corner. And he just started talking. His whole demeanor

and everything was like just very angry and very aggressive.

And I asked him who he was. And he didn’t tell me who he was, he just told

me that I work for this doctor, and you know, we’re trying to collect money and

everything, and she’s a thief. And he went on and on talking about Mara being

a thief and do I know that we have thieves working for the college and things

like that.

. . . . .

And as he was talking and everything – I felt like he was talking to me as

if I was Mara, you know. He was pointing his fingers, do you know this little

thief and this, that and the other.

And he told me that the next time he comes down here, he’s not going to be

alone, he’s bringing the sheriff and she will be arrested. N.T. 8/16/04 at 30-

32.

-15-

those comments.11 Due to this initial genuine issue of material

fact, a granting of summary judgment would be inappropriate.

(6) Plaintiff’s civil conspiracy claim

Ms. Flamm asserts a claim for civil conspiracy. She alleges

that Defendants conspired with malice to compel her to repay her

debt through means of harassment and coercion. See Flamm, 2002 WL

31618443 at *8. Defendants aver that she cannot set forth a claim

for conspiracy in the absence of an agreement between the parties

to commit an unlawful act.

 “Under Pennsylvania law, a civil conspiracy requires (1) two

or more person[s] who combine or agree with an intent to do an

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 15 of 19
12Q. Did you tell John Matusavage that Mara Flamm owed a debt to a doctor?

A. I did.

Q. Did you tell John Matusavage how much was owed to the doctor?

A. I don’t recall.

Q. Do you know whether John Matusavage had any knowledge from any source

about $6,000 was owed by Ms. Flamm to Dr. Brown?

A. I don’t know. I may have mentioned it to him. I may have mentioned it

to him. I may have mentioned it to him that this was a $6,000 judgment. I don’t

recall whether I did or didn’t. N.T. 11/17/04 at 143.

13A. And I had hired him to do a particular job, a specific job, and that

specific job was to serve these papers on Mara Flamm. I didn’t in any way give

him instructions as to how to do that job other than to say this is where I think

she is, and you go ahead and serve it there. I didn’t control the means and

methods by which he did it. I didn’t tell him who to drop it off to, what to

say. I didn’t give him any of those kinds of instructions. Id. at 74.

-16-

unlawful act or to do an otherwise lawful act by unlawful means,

and (2) proof of malice, i.e., an intent to injure.” Id. (internal

quotations omitted).

The question then becomes whether or not Mr. Sarner and Mr.

Matusavage agreed and intended to “do an unlawful act or an

otherwise lawful act by unlawful means”. Mr. Sarner testified that

he did tell Mr. Matusavage that Ms. Flamm owed a debt to a doctor,

and he may have mentioned the amount of the judgment to him,12 but

he did not give Mr. Matusavage instructions as to how to effectuate

service upon her.13 Mr. Sarner testified that he never referred to

Ms. Flamm as a thief in Mr. Matusavage’s presence or as a “sneaky

little thief”. N.T. 11/17/04 at 145. He did not instruct Mr.

Matusavage to harass Ms. Flamm or anybody at her place of

employment, nor did he instruct, or otherwise suggest to Mr.

Matusavage that he defame Ms. Flamm. Id. at 145-146.

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 16 of 19
14Q. Did any of the attorneys you’ve ever served process or Complaints for

instruct you to scare or intimidate the person who’s listed on the envelope?

A. I don’t do work for attorneys that handle that type of, carry that

attitude. If they want to intimidate somebody, they’ll do it. I’m not going to

be their paid goon. I handle everything on my own. N.T. 1/17/05 at 29.

15Q. What do you recall about that first contact with Josh Sarner?

A. He wanted a document served to a Professor Mara Flamm.

Q. Do you remember what he told you about Professor Flamm?

A. He never said anything about Professor Flamm. N.T. 1/17/05 at 32.

-17-

Similarly, Mr. Matusavage testified that he was not instructed

to scare or intimidate someone upon whom he was serving process.14

In fact, he states that “[he has] no knowledge of what was inside

the envelope. N.T. 1/17/05 at 59. Mr. Matusavage asserts that Mr.

Sarner never said anything to him about Ms. Flamm prior to the

service of process.15

Q. When you went over to Josh to pick this up,

did you talk about Miss Flamm?

A. No.

Q. When you were talking with Josh that time,

did he refer to Miss Flamm as a thief or a

dirty little thief?

A. Not to my knowledge.

Q. Did he provide you with any additional

instructions about how to get this served in

such a way that it wouldn’t come back?

A. No.

Q. Now, did Mr. Sarner tell you to be rude or

threatening?

A. No.

Q. Did Mr. Sarner tell you to talk to Miss

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 17 of 19
16A letter from defendants’ counsel to Mr. Sarner dated March 23, 2000,

concerning Brown v. D----- reads in pertinent part:

It was a pleasure speaking with you earlier. As I am

sure you are well aware, Mr. And Mrs. D— initially

contacted Dr. Brown when they learned that they

mistakenly deposited monies into their account for

personal use, which were intended for Dr. Brown.

Additionally, Mr. And Mrs. D– had offered to reimburse

Dr. Brown at a rate of $100 per month toward the amount

due of $1,232.00. Accordingly, your repeated reference

to my clients as “thieves”, is inappropriate and

unprofessional when discussing a resolution of this

dispute. Plaintiff’s Omnibus Response, Supp. Exh. T.

-18-

Flamm’s supervisors about the case?

A. No.

Q. Did Mr. Sarner tell you to call Miss Flamm

names?

A. No

Q. Did Mr. Sarner tell you to intimidate Miss

Flamm?

A. No. N.T. 1/17/05 at 60.

Though Mr. Matusavage testified that he knew nothing

about the contents of the envelope he served upon Ms. Flamm, Mr.

Sarner stated that he told Mr. Matusavage that Ms. Flamm owed money

to a doctor, and he may have told him the amount owed. Further, in

another collection case that Sarner and Associates handled for Dr.

Brown, the word “thieves” was mentioned in reference to

defendants.16 That characterization seems hauntingly similar to

what is alleged herein. Questions are raised which prevent a

granting of summary judgment on this claim.

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 18 of 19
-19-

IV. CONCLUSION

Consistent with the above discussion, the Motions for Summary

Judgment filed by the Sarner Defendants and John Matusavage are

denied.

Case 2:02-cv-04302-MFA Document 80 Filed 01/04/2006 Page 19 of 19