MEDIA – A Delaware County judge has granted a pair of motions sustaining preliminary objections and to compel discovery, in a lawsuit brought by a Delaware County-based accountant which alleged that her former employer, a fitness nonprofit group for kids and a for-profit company, slandered her when publicly and falsely accusing her of embezzlement and payroll fraud.
Donna Cifelli-Smith of West Grove first filed suit in the Delaware County Court of Common Pleas on May 24 versus Healthy Kids Running Series and its president Kenneth Long, both of Thornton.
“Plaintiff Cifelli-Smith served as the accounting manager from Jan. 7, 2019 until April 5, 2022, for both defendant Healthy Kids Running Series and for Victory Event Series, a for-profit company. Both defendant Healthy Kids Running Series and Victory Event Series shared the same office space and officers until August of 2021, when defendant Long assumed the presidency of Healthy Kids Running Series,” the suit said.
“In October of 2021, Victory Event Series moved its offices, but plaintiff continued to act as the accounting manager for Victory Event Series and defendant Healthy Kids Running Series until April 5, 2022. Plaintiff felt compelled to resign from defendant Healthy Kids Running Series on April 5, 2022, due to the work environment created by the defendant Long, after he joined Healthy Kids Running Series in August of 2021 as its president.”
On or about April 27, 2022, the claims that defendant Long intentionally and maliciously instructed his part time associate executive director, Dan Boal, to announce to those assembled at a staff meeting of employees of Healthy Kids Running Series that plaintiff had been “stealing money from the company,” and had engaged in “payroll fraud.”
Boal added in response to a question that plaintiff had created false vendors and issued checks to herself and that the company was “still uncovering and tallying” the fraud, but did not yet know the total amount stolen by plaintiff. Boal also stated, clearly aware of the falsity of his statement, that the company “could not prosecute her because she no longer works here.”
“Plaintiff believes and therefor avers that defendant Long, knowing the statements were false and with the intent to impugn plaintiff’s professional reputation as well as her character, instructed Boal to announce at the staff meeting that plaintiff was stealing from the company. Defendant Long also told the staff that no one was permitted to speak with plaintiff,” the suit stated.
“Defendant Kenneth Long himself stated to Scott Ely, the former Executive Director of Healthy Kids Running Series, that plaintiff had stolen money from the company. As the result of defendant Long’s outrageous conduct, plaintiff has suffered personal and professional humiliation, mental anguish and suffering, lost wages and benefits, and has been unable to seek suitable employment.”
On July 8, the defendants filed an answer to the complaint, along with new matter and a counterclaim.
According to the defendants:
• Defendant Long never instructed Boal to announce anything to the staff of employees on April 27, 2022;
• Boal never informed the staff that the plaintiff had been “stealing money from the company”;
• Boal never stated that the plaintiff had engaged in “payroll fraud”; and
• Boal never stated that the plaintiff had created false vendors or issued checks to herself, that the company was still uncovering or tallying fraud but did not yet know the total amount stolen or that the company could not “prosecute her because she no longer works here.”
“Plaintiff’s claims are barred by the doctrine of waiver. The complaint fails to state a claim upon which relief may be granted. Some or all of plaintiff’s claims are barred by the doctrine of unclean hands, waiver, laches, estoppel and other forms of equitable relief. Plaintiff may have failed to join all indispensable parties. Any damages allegedly suffered by plaintiff were caused by the intentional, reckless, negligent conduct of plaintiff,” according to the new matter.
“The allegations contained in plaintiff’s complaint, in whole or in part, are not well grounded in fact, or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and/or are interposed for an improper reason, including but not limited to, to harass or cause unnecessary delay or needless increase in the cost of litigation or the administration of justice. Plaintiff has engaged in misrepresentations in its allegations against defendants and her claims are barred by estoppel and fraud. Plaintiff’s claims are barred due to the fact that defendants did not publish any false statements concerning plaintiff. Plaintiff’s claims are barred under the ‘fair comment’ doctrine.”
In preliminary objections filed by the plaintiff on July 27, plaintiff counsel argued that “the defendants have failed to set forth any duty owed by plaintiff to defendants, or any facts to establish a legally cognizable duty owed to defendants by plaintiff that she breached, or any facts to establish and describe damages sustained by defendants from a breach of a legal duty owed to defendants by plaintiff. Thus, plaintiff’s demurrer to defendants’ ‘counterclaim’ must be granted and defendants’ ‘counterclaim’ dismissed.”
“Plaintiff respectfully requests that this Court dismiss defendants’ two-count counterclaim as it fails to set forth a cause of action cognizable under Pennsylvania law, even if the defendants had conformed to the requirements of Pennsylvania law,” the objections stated.
The defendants filed a memorandum brief in opposition to the plaintiff’s preliminary objections on Aug. 19, finding that the plaintiff was absolutely an employee of HKRS.
“Here, plaintiff was indisputably an employee of HKRS. At the same time, she was employed by a second company that shared office space with HKRS. The complaint alleges that she failed in her duty of loyalty to HKRS because she (a) failed to complete her work in a timely fashion; (b) failed to provide requested payroll reports to show that she was not being paid by HKRS for her work at the second company; (c) failed to provide passcodes to HKRS necessary to its business dealings when she abruptly left her post; and (d) failed to disclose that her assistant had issued a letter of resignation two weeks earlier, all of which caused damages to HKRS,” the memorandum brief stated.
“These facts demonstrate that plaintiff breached her duty of loyalty to HKRS, amply supporting the allegations of the counterclaim. For all of the foregoing reasons, defendants respectfully request that plaintiff’s preliminary objections be overruled.”
On Nov. 3, plaintiff counsel filed a motion to compel discovery from the defendants and claimed they have not cooperated with associated discovery requests, a response to which had been due by Sept. 30.
“This is an action for damages plaintiff suffered as the result of defendants’ slanderous statements. On Aug. 30, 2022, plaintiff served requests for production upon defendants. Defendants have failed to respond to plaintiff’s requests for production,” according to the motion.
“Plaintiff’s counsel has asked defendants’ counsel numerous times for defendants’ responses to the requests for production and defendants have still failed to respond to the outstanding discovery. Plaintiff requests that this Court enter an order compelling defendants to respond to plaintiff’s request for production within 10 days of the date of this order.”
The requested discovery materials in question, sought by the plaintiff, consist of statements related to the suit’s allegations, written reports, payroll reports, employee files, employment contracts, audits, tax forms and vendor contracts.
UPDATE
On Feb. 10, Delaware County Court of Common Pleas Judge John J. Whelan granted the plaintiff’s preliminary objections and their motion to compel discovery responses.
“Upon consideration of plaintiff’s preliminary objections in the nature of a demurer to defendants’ answer with new matter counterclaim, and any response thereto, it is ordered that plaintiff’s preliminary objections are sustained and defendants’ are afforded leave of Court to file an amended new matter counterclaim within 20 days of notice of this order,” Whelan said.
“Upon consideration of plaintiff’s motion to compel defendants to respond to plaintiff’s request for production, and receiving no opposition thereto, it is ordered that said motion is granted. It is further ordered that defendants shall produce the documents requested in plaintiff’s request for production within 20 days of the date of notice of this order or risk the imposition of sanctions upon further application to the Court.”
For counts of slander per se and respondeat superior liability, the plaintiff is seeking damages in excess of $50,000, plus interest, costs and punitive damages.
The plaintiff is represented by Hugh A. Donaghue, Kathryn L. Labrum and Tyler J. Therriault of Donaghue & Labrum, in Media.
The defendants are represented by Ellen M. McDowell of McDowell Law, in Maple Shade, N.J.
Delaware County Court of Common Pleas case CV-2022-003566
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com