1

 The Court will grant the motions of the Sarner Defendants and Mr. Matusavage for leave to reply, (Doc.

Nos. 17, 20), and has correspondingly considered the replies in determining the instant motions for dismissal. Mr.

Matusavage has also moved to disqualify plaintiff’s counsel. (Doc. No. 14.) Because plaintiff has voluntarily

changed counsel, the motion to disqualify will be denied as moot. Finally, although the Sarner Defendants have filed

various attachments, on which Mr. Matusavage also relies, that are outside the ken of review upon a motion to

dismiss, the Court has not relied upon any of the attachments in reaching its decision today. 

IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARA FLAMM, : CIVIL ACTION

:

Plaintiff, :

:

v. :

:

SARNER & ASSOCIATES, P.C., :

et al., :

:

Defendant. : NO. 02-4302

Reed, S.J. November 6, 2002

M E M O R A N D U M

This action arises out of the efforts of defendants to collect a debt from plaintiff. Plaintiff

has brought suit against her physician Jodi Brown, M.D. (“Dr. Brown”), her physician’s attorneys

Joshua and Leonard Sarner and their firm of Sarner & Associates, P.C. (collectively, “Sarner

Defendants”), and process server John Matusavage (“Mr. Matusavage”). Plaintiff alleges claims

under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., as well as

under Pennsylvania state law for violations of the Unfair Trade Practices and Consumer

Protection Law (“UTPCPL”), 73 Pa. C. S. § 201-1, et seq., intentional infliction of emotional

distress, defamation and civil conspiracy. Defendants have moved to dismiss the FDCPA claim

asserted for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). They have

further moved to dismiss the remaining claims for lack of jurisdiction. For reasons articulated

below, the motions to dismiss will be granted in part and denied in part.1

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 1 of 19
2

 All facts are taken as true from the complaint, as required by law.

3

 As Mr. Matusavage’s identity on his second visit to Peirce College was unknown to plaintiff, the

complaint names a “John Doe Process Server” as a defendant. The motion to dismiss of the Sarner Defendants

confirmed that the unknown process server was in fact Mr. Matusavage. (Sarner. Def. Mot. at 4.)

-2-

Factual Background2

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 or 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.3 Carnita

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 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

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 2 of 19
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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.

Legal Standard

Rule 12 (b) of the Federal Rules of Civil Procedure provides that “the following defenses

may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which

relief can be granted.” In deciding a motion to dismiss under Rule 12 (b) (6), a court must take

all well pleaded facts in the complaint as true and view them in the light most favorable to the

plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843 (1969). Because the

Federal Rules of Civil Procedure require only notice pleading, the complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8 (a). A motion to dismiss should be granted only if “it is clear that no relief could be granted

under any set of facts that could be proved consistent with the allegations.” Hishon v. King & 

Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229 (1984). 

Analysis

A. Count I – FDCPA Claims

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

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 3 of 19
4

 A creditor is defined as 

any person who offers or extends credit creating a debt or to whom a debt is owed, but such term

does not include any person to the extent that he receives an assignment or transfer of a debt in

default solely for the purpose of facilitating collection of such debt for another.

15 U.S.C. § 1692a(4).

-4-

consumers against debt collection abuses.” 15 U.S.C. §1692(e). It is uncontested that the money

owed by Ms. Flamm constitutes a “debt” as defined in 15 U.S.C. § 1692a(5). In Count I of the

complaint, plaintiff claims that the acts of defendants were abusive debt collection practices

within the meaning of the statute. Defendants have moved to dismiss by contesting the

allegation that they were “debt collectors” as defined by the FDCPA.

1. Dr. Brown

Dr. Brown asserts that because she is a “creditor” rather than a “debt collector” as defined

in the FDCPA, she is not subject to its dictates.4 A “debt collector” is defined by the FDCPA, in

relevant part, as

any person who uses any instrumentality of interstate commerce or the mails in

any business the principal purpose of which is the collection of any debts, or who

regularly collects or attempts to collect, directly or indirectly, debts owed or due

or asserted to be owed or due another. Notwithstanding the exclusion provided by

clause (F) of the last sentence of this paragraph, the term includes any creditor

who, in the process of collecting his own debts, uses any name other than his own

which would indicate that a third person is collecting or attempting to collect such

debts. For the purpose of section 1692f of this title, such term also includes any

person who uses any instrumentality of interstate commerce or the mails in any

business the principal business of which is the enforcement of security interests. 

The term does not include-

(A) any officer or employee of a creditor while, in the name of the creditor,

collecting debts for such creditor;

(B) any person while acting as a debt collector for another person, both of whom

are related by common ownership or affiliated by corporate control, if the person

acting as a debt collector does so only for persons to whom it is so related or

affiliated and if the principal business of such person is not the collection of debts;

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 4 of 19
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(C) any officer or employee of the United States or any State to the extent that

collecting or attempting to collect any debt is in the performance of his official

duties;

(D) any person while serving or attempting to serve legal process on any other

person in connection with the judicial enforcement of any debt;

(E) any nonprofit organization which, at the request of consumers, performs bona

fide consumer credit counseling and assists consumers in the liquidation of their

debts by receiving payments from such consumers and distributing such amounts

to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted

to be owed or due another to the extent such activity (i) is incidental to a bona fide

fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which

was originated by such person; (iii) concerns a debt which was not in default at

the time it was obtained by such person; or (iv) concerns a debt obtained by such

person as a secured party in a commercial credit transaction involving the creditor.

15 U.S.C. § 1692a(6) (emphasis added).

Generally the FDCPA does not govern the activities of a creditor attempting to collect on

debts owed directly to themselves. See Gary v. Goldman & Co., 180 F. Supp. 2d 668, 672 (E.D.

Pa. 2002) (citing Pollice v. National Tax Funding, L.P., 225 F.3d 379,403 (3d Cir. 2000). This is

likely because “creditors are generally presumed to restrain their abusive collection practices out

of a desire to protect their corporate goodwill. . . .” Aubert v. American Gen. Fin., Inc., 137 F.3d

976, 978 (7th Cir. 1998) (quoted in Pollice, 225 F.3d at 403). Nevertheless, under the statute, the

term “debt collector” includes creditors “who, in the process of collecting his own debts, uses

any name other than his own which would indicate that a third person is collecting or attempting

to collect such debts by indicating that a third person was collecting or attempting to collect such

debts.” 15 U.S.C. § 1692a(6). In her response to Dr. Brown’s motion, plaintiff maintains that

Dr. Brown used the name of the Sarner defendants to collect on her own debt, and thus falls

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 5 of 19
-6-

within the definition of “debt collector.” 

A creditor collects its own debts by using a different name, implying that a third party

was the debt collector, when the creditor either used an alias, see Pressman v. Southeastern

Financial Group, Inc., No. CIV. A. 94-5244, 1995 U.S. Dist. LEXIS 17961 (E.D. Pa. Nov. 30,

1995), or “controlled almost all aspects of debt collection.” Harrison v. NBD Inc., 968 F. Supp.

837, 843 (E.D.N.Y. 1997). For example, a creditor was found to be a “debt collector” where the

creditor, and not its attorney, operated an automated system that selected the defaulted accounts,

mailed and printed the attorney's letters from its office, and received and handled any responses

or payments elicited from those letters with the attorney through communication channels

maintained by the creditor. See Young v. Citicorp Retail Servs., 3:95 CV1504, 1997 U.S. Dist.

LEXIS 22669, at *10 (D. Conn. May 20, 1997), aff’d No. 97-9397, U.S. App. LEXIS 20268 (2d

Cir. June 29, 1998). This prohibited practice is known as “flat-rating,” in which a collection

agency receives a flat fee based on the number of demand letters sent bearing the collection

agency letterhead, but is otherwise not involved in the collection of the debt. See Sokolski v.

Trans Union Corp., 53 F. Supp. 2d 307, 312 (E.D.N.Y. 1999) (finding flat-rating where

collection agency furnished collection letters but neither received nor reviewed debtors’ files,

sent all received correspondence directly to creditor, had no authority to negotiate debt collection

and received only flat fee for letters sent). In contrast, a creditor who retains an independent

unaffiliated debt collector is not a “debt collector” herself, regardless of whether she approves of

the debt collector’s practices. Harrison, 968 F. Supp. at 843. 

Nowhere in her complaint does plaintiff allege that Dr. Brown used a third party’s name

to collect upon her debt. The statute makes clear that a creditor must be in the process of

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 6 of 19
-7-

collecting her own debt under the name of a third party, and the case law has shown that she must

control almost all aspects of the debt collection process for the creditor to be deemed a “debt

collector.” Although Ms. Flamm alleges that Dr. Brown “controlled, directed, supervised, and/or

approved the actions of [the other defendants] with respect to the collection of a debt allegedly

owed from Plaintiff,” (Compl. ¶ 8), the subsequent allegations specify that Dr. Brown hired a law

firm, who itself independently hired Mr. Matusavage and undertook collection activities. 

Nothing in the complaint hints at any prohibited flat-rating practice on the part of Dr. Brown. 

Mere approval or encouragement by a creditor of aggressive or even abusive collection tactics is

insufficient to render her a “debt collector” under the FDCPA. I therefore find that Dr. Brown is

a creditor and not a “debt collector” within the meaning of the statute.

Further, the Court concludes that Dr. Brown is not vicariously liable for any actions by

her attorneys under the FDCPA. “[A]n 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.” Pollice, 225 F.3d at 404. Conversely, a creditor that does not itself meet the definition

of a “debt collector” is not vicariously liable. See Wadlington v. Credit Acceptance Corp., 76

F.3d 103, 108 (6th Cir. 1996) (quoted in Pollice, 225 F.3d at 404). Because I find that Dr. Brown

is not herself a “debt collector” under the allegations of the complaint, I conclude that plaintiff

has not stated a claim for relief against her under the FDCPA. I will therefore grant the motion to

dismiss Count I of the complaint as against Dr. Brown.

2. Sarner Defendants

The Sarner Defendants have also moved for dismissal based on the theory that they are

not “debt collectors” within the meaning of the statute. They premise this theory on the fact that

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 7 of 19
-8-

the statute exempts from its definition “any person while serving or attempting to serve legal

process on any other person in connection with the judicial enforcement of any debt.” 15 U.S.C.

§ 1692a(6)(D). The Sarner Defendants claim that because Mr. Matusavage was serving legal

process upon plaintiff on the occasion in question, they fall within this exemption. 

Plaintiff does not contest that the package delivered to Ms. Rutling was indeed legal

process (Pl. Resp. to Matusavage Mot. at 7), but rather challenges it as improper service under

the Pennsylvania Rules of Civil Procedure. Nevertheless, plaintiff fails to cite any cases or

statutory language to support her argument that, as in the exercise of jurisdiction, service must be

proper to exempt a process server from the statute. I find that the argument is at odds with the

plain face of the statutory language which provides that an attempt at service is sufficient. 

Plaintiff herself admits that defendants “twice attempted to serve Plaintiff at Peirce College,” 

(Id. at 10), and I find that an attempt at service at a debtor’s place of employment is reasonable. 

Thus, the nature of the service, whether complete or incomplete under the strict rules of

Pennsylvania civil procedure, does not prevent the exemption from applying in this instance.

Nevertheless, the process server exemption does not necessarily extend to the persons

who hire the process servers. See Romea v. Heiberger & Assocs., 163 F.3d 111, 117 (2d Cir.

1998) (no exemption for those who prepared communications served). One district court has

concluded that “the exemptions do not exclude the actions of third persons . . . who utilize these

exempt individuals to violate the act.” Alger v. Ganick, O’Brien & Sarin, 35 F. Supp. 2d 148,

153 (D. Mass. 1999) (rejecting notion that debt collector who instructs service processor to

“engage in abusive conduct” is shielded from liability). Additionally, under agency principles,

the law firm may be vicariously liable for the acts of his authorized or apparent agent under the

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 8 of 19
-9-

FDCPA. Id. (citing cases). Thus, the fact that the Sarner Defendants requested Mr. Matusavage

to serve the process does not render themselves a server of legal process as described in 15

U.S.C. § 1692a(6)(D), nor do these facts alone exclude the Sarner Defendants from the definition

of “debt collector.” The Sarner Defendants raise no other challenge to plaintiff’s allegation that

they violated the FDCPA. Thus, the plaintiff’s federal claims against the Sarner Defendants will

withstand the motion to dismiss. 

3. Mr. Matusavage

As with the Sarner Defendants, Mr. Matusavage seeks to exclude himself from the

definition of “debt collector” by qualifying for the legal process server exemption. As discussed

above, contrary to plaintiff’s assertions, the Court determines that Mr. Matusavage’s attempts to

serve plaintiff at Peirce College falls within the statutory exemption, regardless of whether it

constituted proper service under the state civil procedure rules. Plaintiff argues, however, that

Mr. Matusavage’s actions extended beyond merely serving or attempting to serve, and that he

consequently qualifies as a “debt collector” regardless of his legal process server status. No case

law nor supportive statutory language have been cited by either side on this issue. 

When determining that the law firm that prepared a served document did not itself qualify

as a legal process server, the Second Circuit Court of Appeals reasoned as follows:

By exempting from liability under the FDCPA those individuals whose

involvement in a debt collection communication was limited to serving the

communication on the consumer – in effect, to being messengers – Congress did

not compromise the strength of the FDCPA’s protections. To read Congress,

instead, as having carved out a wholesale exemption for anyone who prepares a

communication – no matter how violative of the safeguards that the FDCPA

affords debtors – just because the communication is eventually served on the

consumer as a prerequisite to beginning a court proceeding, would not only stretch

the statutory language; it would also significantly impede the statute from

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 9 of 19
-10-

remedying the “mischief” to which it was addressed.

Romea, 163 F.3d at 117. This logic may easily be extended to the case at hand. 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.” Id.

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. Because

Mr. Matusavage does not otherwise challenge plaintiff’s allegation that he violated the FDCPA,

this claim against Mr. Matusavage will survive the motion to dismiss.

B. State Law Claims

Because the Court will deny the motions to dismiss the FDCPA claims against the Sarner

Defendants and Mr. Matusavage, the Court will exercise its supplemental jurisdiction over the

remaining claims against all the defendants pursuant to 28 U.S.C. § 1367. Nevertheless, as Dr.

Brown and Mr. Matusavage have both moved for dismissal of the state law claims under Rule

12(b)(6), I will proceed to review these claims on their merits.

1. Count II – Unfair Trade Practices and Consumer Protection Law

Plaintiff alleges generally a violation of Pennsylvania’s Unfair Trade Practices and

Consumer Protection Law (“UTPCPL”), 73 Pa.C.S. § 201-1 et seq. The UTPCPL prohibits the

use of unfair methods of competition and unfair or deceptive acts or practices in the conduct of

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 10 of 19
-11-

any trade or commerce as defined by the statute. 73 Pa.C.S. § 201-3. Although Mr. Matusavage

contests the applicability of the UTPCPL to the alleged abusive conduct at issue, debt collection

has been deemed to be activities within trade or commerce as regulated under the UTPCPL. See

Pennsylvania Retailers’ Assocs., Reliable, Inc. v. Lazin, 426 A.2d 712, 718, 57 Pa. Cmwlth. 232

(1981). Further, pursuant to the UTPCPL, 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 UTPCPL for relief.

Dr. Brown has moved to dismiss all the state claims by denying vicarious liability for any

of the actions of the other defendants. Nevertheless, under the PFCEUA, a creditor is directly

liable for an enumerated list of prohibited acts independent of the actions of a debt collector. See

73 Pa.C.S. § 2270.4(b). Further, the statute appears to include a catch-all provision: “A creditor

may not engage in any conduct the natural consequence of which is to harass, oppress or abuse

any person in connection with the collection of a debt.” 73 Pa.C.S. § 2270.4(b)(4). Plaintiff has

alleged that Dr. Brown engaged the Sarner Defendants knowing that they would harass and

annoy plaintiff through their debt collection activities; such actions would violate the PFCEUA. 

Thus, based on the broad language of this prohibition, plaintiff has sufficiently stated a claim for

relief to avoid a dismissal of the UTPCL claim against Dr. Brown.

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 11 of 19
5

 The Court of Appeals for the Third Circuit has noted that the Pennsylvania Supreme Court has not

explicitly adopted the Restatement; however, the court assumed the existence of the tort and appeared to have relied

on the Restatement. See Shaner, 204 F.3d at 508 n.18 (citing Hoy, 720 A.2d at 753 n.10).

-12-

2. Count III – Intentional Infliction of Emotional Distress

In Count III of the complaint, plaintiff asserts a claim for intentional infliction of

emotional distress. The tort of intentional infliction of emotional distress is defined under

Pennsylvania law as “‘[o]ne who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for such emotional distress, and

if bodily harm to the other results from it, for such bodily harm.’” Shaner v. Synthes (USA), 204

F.3d 494, 507 (3d Cir. 2000) (quoting Hoy v. Angelone, 554 Pa. 134, 150, 720 A.2d 745, 753

(Pa. 1998) (quoting Restatement (Second) of Torts § 46)).5 “‘[C]ourts have been chary to allow

recovery for a claim of intentional infliction of emotional distress. Only if conduct which is

extreme or clearly outrageous is established will a claim be proven.’” Id. at 508 (quoting Hoy,

720 A.2d at 753-54). Such intentional or reckless conduct by a defendant must be “so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Hoy, 720

A.2d at 754; see Vassallo v. Timoney, 00-CV-84, 2001 U.S. Dist. LEXIS 16781, at *29 (E.D. Pa.

Oct. 15, 2001), aff’d, 40 Fed. Appx. 734 (3d Cir. 2002), (citing Clark v. Falls, 890 F.2d 611, 623

(3d Cir. 1989) (reversing verdict for plaintiff who was defamed, falsely referred for prosecution

and deprived of First Amendment rights); Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d

Cir. 1988) (holding ill-motivated or callous termination of employment insufficient); Motheral v.

Burkhart, 400 Pa. Super. 408, 583 A.2d 1180, 1190 (Pa. Super. 1990) (falsely accusing plaintiff

of child molestation not sufficient)). I find that the alleged conduct by the defendants, although

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 12 of 19
-13-

odious, does not rise to this level of outrageousness. Consequently, I conclude that plaintiff has

failed to state a claim for intentional infliction of emotional distress. I will thus grant the motion

to dismiss Count III of the complaint as against all defendants.

3. Count IV – Defamation - Slander

“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.’” Unisource Worldwide, Inc. v. Heller, 99-CV-266, 1999 U.S. Dist. LEXIS 8530, at **8-9

(E.D. Pa. June 9, 1999) (quoting Redco Corp. v. CBS, Inc., 758 F.2d 970, 971 (3d Cir. 1985)). 

Plaintiff alleges that the statements by Mr. Matusavage to Ms. Rutling were defamatory. Mr.

Matusavage argues that because the statements were made in the course of serving legal process,

the statements enjoy absolute privilege.

“The doctrine of absolute judicial privilege applies to statements made in the ‘regular

course of judicial proceedings’ that are ‘pertinent and material’ to the litigation.” Todi v.

Stursberg, 01-CV-2539, 2001 U.S. Dist. LEXIS 20098, at * 3 (E.D. Pa. Dec. 4, 2001) (quoting

Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950, 956 (1988)). Nevertheless,

“communications to persons who have no direct interest in the proceedings are not protected.” 

Foglietta v. Daspin, 98-CV-2750, 1998 U.S. Dist. LEXIS 17401, at *10 (E.D. Pa. Oct. 23, 1998)

(citing Post v. Mendel, 510 Pa. 213, 507 A.2d 351, 357 (1986)). Plaintiff alleges that Mr.

Matusavage relayed the communications at issue to Ms. Rutling, a person with no direct or

indirect interest in the judicial proceeding between Ms. Flamm and Dr. Brown. Such

communications are neither “pertinent’ nor “material” to the litigation, regardless of whether

they were made during the course of serving legal process. Consequently, I conclude they do not

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 13 of 19
6

 In Computer Aid, Inc. v. Hewlett-Packard Co., 56 F. Supp. 2d 526, 537-38 (E.D. Pa. 1999), the defendant

was granted summary judgment on the claim for defamation, where the defendant could be liable only under a theory

of vicarious liability, but vicarious liability was never pleaded in the complaint. Id. (citing Schaffer by Schaffer v.

A.O. Smith Harvestore Prods., 74 F.3d 722, 731 (6th Cit. 1996)). Similarly, Ms. Flamm has not specifically

pleaded a claim for vicarious liability against the Sarner Defendants nor Dr. Brown. Nevertheless, I find that Ms.

Flamm has alleged sufficient facts and allegations of agency to put the defendants on notice of such a claim. 

-14-

enjoy absolute immunity.

Although there may be a limited form of immunity for statements made outside of

judicial proceedings, I still find that the alleged statements are not immune.

Statements made outside a judicial proceeding may be afforded a qualified, or

conditional privilege if (1) they are a fair and accurate report of statements made

or pleadings filed in a judicial action; (2) there is no abuse of the privilege – such

as over-embellishment – and (3) the out-of-court statements are not uttered for the

sole purpose of causing harm.

Kormi v. Kormi, 97-CV-2788, 1998 U.S. Dist. LEXIS 3402, at *11 (E.D. Pa. Mar. 17, 1998),

aff’d without opinion, 172 F.3d 859 (3d Cir. 1998), (citing Binder v. Triangle Publications, Inc.,

442 Pa. 319, 275 A.2d 53, 56 (1971)). Plaintiff alleges that Mr. Matusavage characterized her as

a “thief” who stole thousands of dollars from a doctor. (Compl., ¶ 30.) I find that if made, such

statement would constitute an abuse of the privilege in that it over-embellished the nature of the

underlying state action against Ms. Flamm. Consequently, I conclude that the alleged statements

are not protected by the qualified immunity, and that plaintiff has stated a claim for defamation

against Mr. Matusavage.

To state a claim for defamation under Pennsylvania law, plaintiff must plead and prove

that the communication was published by the defendant. See 42 Pa.C.S. § 8343(a)(2). Plaintiff

has not alleged that either the Sarner Defendants or Dr. Brown made any defamatory statements

themselves or repeated any statements allegedly made by Mr. Matusavage. Consequently, they

may only be held liable for defamation under a theory of vicarious liability.6 It is well settled

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 14 of 19
See Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 588-89 (Pa. Super. Ct. 2002) (facts read in

conjunction with other allegations in complaint sufficiently provided hospital defendant with adequate notice of

malpractice claim based on agency liability).

-15-

under Pennsylvania law that an employer may be held liable for the intentional or criminal acts of

its employee only if the wrongful act was committed within the scope of the employment. 

Michelson v. Exxon Research and Engineering Co., 808 F.2d 1005, 1007 (3d Cir. 1987) (citing

Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir. 1979) (en banc)); Fala

v. Perrier Group of Am., No. 99-CV-3319, 2000 U.S. Dist. LEXIS 7218, at *13 (E.D. Pa. May

25, 2000); Dee v. Marriott Int’l, Inc., No. Civ. A. 99-2459, 1999 U.S. Dist. LEXIS 16159, at **7-

9 (E.D. Pa. Oct. 6, 1999); Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 39 (Pa. Super.

Ct. 2000); R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 699 (Pa. Super. Ct. 2000);

Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998). Pennsylvania has

adopted the Restatement's definition of conduct within the scope of employment: 

(1) [I]t is of a kind and nature that the employee is employed to perform; (2) it

occurs substantially within the authorized time and space limits; (3) it is actuated,

at least in part, by a purpose to serve the employer; and (4) if force is intentionally

used by the employee against another, the use of force is not unexpected by the

employer.

 

Costa, 708 A.2d at 493 (citing Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270,

1272 (Pa. Super. 1979); RESTATEMENT (SECOND) OF AGENCY § 228 (1958)). 

Plaintiff has alleged that the Sarner Defendants employed or contracted with Mr.

Matusavage as a process server and debt collector, and that Mr. Matusavage acted in this capacity

within the scope of his employment at the time of the alleged tortious conduct. (Compl., ¶¶ 13-

14.) In other words, Ms. Flamm has pleaded that Mr. Matusavage was hired to harass and annoy

plaintiff to pressure Ms. Flamm to repay her debts. The Court cannot say at this stage of the

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proceedings that the alleged statements were made outside of the scope of Mr. Matusavage’s

employment. Consequently, the claim for defamation as against the Sarner Defendants will also

survive the motion to dismiss.

Similarly, the claim for defamation against Dr. Brown must survive at this junction. Dr.

Brown contends that a client is not vicariously liable for the negligence of her attorneys, citing to

I & S Assocs. Trust v. LaSalle Nat'l Bank, 99-CV-4596, 2001 U.S. Dist. LEXIS 15223, at **13-4

(E.D. Pa. Sept. 26, 2001). Nevertheless, defamation is an intentional tort. See Computer Aid,

Inc. v. Hewlett-Packard Co., 56 F. Supp. 2d 526, 539 (E.D. Pa. 1999). A client may not be

subject to vicarious liability for intentional torts committed by the attorney unless the client

authorized or ratified the commission of the tort. Cf. Computer Aid., 56 F. Supp. 2d at 538

(citing cases) (granting summary judgment to client on defamation claim) (dictum noting

evidence showed no ratification of defamatory action by attorney). Ms. Flamm has alleged that

Dr. Brown actively approved and encouraged the defamatory action, which may constitute

ratification of the alleged tortious conduct. I thus conclude that the plaintiff has stated a claim

for defamation, and the motion of Dr. Brown to dismiss the defamation claim will be denied.

4. Count V – Civil Conspiracy

Plaintiff has asserted a claim for civil conspiracy under Count V of the complaint. 

“Under Pennsylvania law, a civil conspiracy requires (1) ‘two or more person who combine or

agree with an intent to do an unlawful act or to do an otherwise lawful act by unlawful

means,’and (2) ‘proof of malice, i.e., an intent to injure.’” Daniel Boone Area Sch. Dist. v.

Lehman Bros., Inc., 187 F. Supp. 2d 400, 410 (W.D. Pa. 2002) (quoting Thompson Coal Co. v.

Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 472 (1979)). “[T]o survive a motion to dismiss on

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the conspiracy claim, the plaintiff's complaint need only describe the general composition of the

conspiracy, some or all of its broad objectives, and defendant's general role in that conspiracy.” 

Jairett v. First Montauk Sec. Corp., 203 F.R.D. 181, 187-88 (E.D. Pa. 2001) (internal quotation

marks and citations omitted). Plaintiff has alleged that the named defendants conspired with

malice to compel plaintiff to repay her debt through means of harassment and coercion. (Compl.

¶¶ 70- 72.) I find that read broadly, the allegations sufficiently plead that Dr. Brown hired the

Sarner Defendants, who in turn hired Mr. Matusavage, with the purpose of collecting the debt

owed to Dr. Brown, in a manner that violated federal and state law, and I further conclude that

plaintiff has stated a claim for civil conspiracy. Consequently, the motions to dismiss the civil

conspiracy claim will be denied.

Conclusion

For the foregoing reasons, plaintiff has stated a claim for relief under the FDCPA against

the Sarner Defendants and Mr. Matusavage, and has stated claims for relief for violations of the

UTPCL, defamation, and civil conspiracy against all of the defendants. Consequently, the

motions to dismiss will be granted in part and denied in part. Count I of the complaint will be

dismissed as against Dr. Brown, and Count III of the complaint will be dismissed as against all of

the defendants.

An appropriate Order follows.

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 17 of 19
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARA FLAMM, : CIVIL ACTION

:

Plaintiff, :

:

v. :

:

SARNER & ASSOCIATES, P.C., :

et al., :

:

Defendant. : NO. 02-4302

O R D E R

AND NOW, this 6th day of November, 2002, upon consideration of the motion of

defendant Jodi H. Brown, M.D. to dismiss (Doc. No. 11), the motion of defendants Joshua

Sarner, Leonard Sarner and Sarner & Associates, P.C. (collectively, “Sarner Defendants”) to

dismiss (Doc. No. 10), and the motion of defendant John Matusavage to dismiss and disqualify

counsel (Doc. No. 14), the responses of plaintiff (Docs. No. 15 - 16, 18), the motions for leave to

reply (Doc. Nos. 17, 20), and the sur-replies thereto, and for the reasons set forth in the foregoing

memorandum, IT IS HEREBY ORDERED as follows:

1. The motions of the Sarner Defendants and John Matusavage for leave to reply (Doc. Nos.

17, 20) are GRANTED. 

3. The motion of Jodi H. Brown, M.D. to dismiss is GRANTED IN PART AND DENIED

IN PART, and Counts I and III of the complaint are dismissed as to defendant Jodi H.

Brown, M.D.

3. The motion of the Sarner Defendants to dismiss is GRANTED IN PART AND

DENIED IN PART, and Count III of the complaint is dismissed as against defendants

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 18 of 19
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Joshua Sarner, Leonard Sarner and Sarner & Associates, P.C..

4. The motion of to dismiss of John Matusavage is GRANTED IN PART AND DENIED

IN PART, and Count III of the complaint is dismissed as against defendant John

Matusavage. The motion of John Matusavage to disqualify plaintiff’s counsel (Doc. No.

14) is DENIED as moot.

IT IS FURTHER ORDERED that the defendants shall answer the remaining allegations

of the complaint no later than December 9, 2002.

___________________________

LOWELL A. REED, JR., S.J.

Case 2:02-cv-04302-MFA Document 22 Filed 11/06/2002 Page 19 of 19