SOKOL v. CLARK, M.D. P.C. et al

Filing 127

MEMORANDUM OPINION indicating that, for reasons stated within, the motion for summary judgment filed on behalf of the plaintiff/counter-defendant Brandy Sokol 109 will be denied, and the motion for summary judgment filed on behalf of the defendants Brent Clark and Judy Clark 106 will be granted as to the malicious prosecution claim filed by the plaintiff against Dr. Clark and Mrs. Clark and denied as to any claim by the plaintiff for emotional damages and/or emotional distress. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 11/22/17. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRANDY SOKOL,
Plaintiff
vs.
BRENT CLARK, M.D. P.C., BRENT
CLARK, and JUDY CLARK,
Defendants/Counter Claimants
vs.
BRANDY SOKOL,
Counter Defendant.

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Civil Action No. 16-1477

Memorandum Opinion
Pending before the court is the motion for summary judgment filed by plaintiff/counter
defendant Brandy Sokol (“Plaintiff” or “Ms. Sokol”) (Docket No. 109) and the motion for partial
summary judgment filed by defendants/counter claimants Brent Clark, M.D. P.C. (the
“Corporation”), Brent Clark (“Dr. Clark”), and Judy Clark (“Mrs. Clark), (collectively
“Defendants” or “the Clark Defendants”) (Docket No. 106).
Ms. Sokol’s motion for summary judgment seeks judgment in her favor as a matter of
law as to Count I of Dr. Clark and Mrs. Clark’s counterclaim against her.1 Count I alleges that
Ms. Sokol, Dr. Clark and Mrs. Clark entered into a Residential Lease Agreement and that Ms.
Sokol breached the contract. (Docket No. 1 at ¶¶ 1-10). In support of her motion, Ms. Sokol has
filed a memorandum of law (Docket No. 110), a statement of undisputed material facts

By Order of Court dated February 9, 2017 (Docket No. 41), the Court granted the parties’ Stipulation To Withdraw
Brent Clark M.D., P.C. as Counterclaimant (Docket No. 40) and dismissed the counterclaim as to the Corporation.
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(“Plaintiff’s Statement of Undisputed Material Facts”) (Docket No. 111), and an appendix with
exhibits (Docket Nos. 112-113), and a reply brief in support of her motion for summary
judgment2 (Docket No. 124).
In response to Ms. Sokol’s motion for summary judgment, Dr. Clark and Mrs. Clark filed
a brief in opposition to plaintiff’s motion for summary judgment (“Individual Defendants’
Opposition Brief”) (Docket No. 115), a response to plaintiff’s statement of undisputed material
facts (Docket No. 116), and an appendix with exhibits (Docket No. 119).
The Clark Defendants’ motion for partial summary judgment seeks judgment as a matter
of law as to Count XI of Plaintiff’s Complaint against them and as to Plaintiff’s claim in the
Complaint for emotional distress and damages thereto. Count XI of Ms. Sokol’s Complaint
alleges a malicious prosecution claim against the Clark Defendants based upon Mrs. Clark
allegedly initiating a landlord tenant lawsuit against Ms. Sokol without probable cause to do so
in retaliation for Ms. Sokol making a demand related to the enforcement of her rights pursuant to
Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, the Fair
Housing Act, and the Pennsylvania Wage Payment and Collection Law. (Docket No. 1 at ¶¶ 8487). In support of their motion for partial summary judgment, the Clark Defendants filed a brief
in support (Docket No. 107), a statement of material facts not in dispute (“Clark Defendants’
Statement of Material Facts Not in Dispute”) (Docket No. 108), and exhibits in support thereof

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Reply briefs were due no later than November 1, 2017 and sur-reply briefs were due no later than November 15,
2017. (Docket Nos. 69, 74 at 14). The plaintiff’s reply brief was filed at 1:07 A.M. on November 2, 2017. While
not timely filed, because of this court’s inherent authority to control its docket, see Eash v. Riggins Trucking, Inc.,
757 F.2d 557, 567 (3d Cir. 1985) (“A court's inherent power to manage its caseload, control its docket, and regulate
the conduct of attorneys before it, provides authority to fashion tools that aid the court in getting on with the
business of deciding cases.”), and because the defendants were given the opportunity to file a sur-reply to the
plaintiff’s reply, which they did not file, the Court concludes that the defendants will not suffer any prejudice from
the plaintiff’s late submission and it will consider the arguments made by Ms. Sokol in her reply brief.

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(Docket Nos. 106-2-106-12). The defendants also filed a reply brief (Docket No. 122) and a
response to the plaintiff’s statement of undisputed material facts (Docket No. 123).
In response to the Clark Defendants’ motion for partial summary judgment, Ms. Sokol
filed a brief (“Plaintiff’s Opposition Brief”) (Docket No. 120), and a response statement of
undisputed material facts (Docket No. 121).
A hearing on the cross-motions for summary judgment was held on November 20, 2017
(Docket No. 126). At the conclusion of the hearing, the parties indicated that they did not need a
transcript of the proceeding or additional time to submit supplemental briefs. This matter, thus,
is fully briefed, argued, and ripe for disposition. As more fully explained below, Ms. Sokol’s
motion for summary judgment will be denied as to the counterclaim for breach of contract filed
against her by Dr. Clark and Mrs. Clark, and the Clark Defendants’ motion for partial summary
judgment will be granted as to Count XI of the Complaint filed against them for malicious
prosecution and will be denied as to Plaintiff’s claim in the Complaint for emotional distress and
damages thereto.
I. Standard of Review.
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). See also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective
position by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). In other words, summary judgment may be granted only
if there exists no genuine issue of material fact that would permit a reasonable jury to find for the

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nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505
(1986). “When confronted with cross-motions for summary judgment, the ‘court must rule on
each party's motion on an individual and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56 standard.’” Anderson v. Franklin
Inst.185 F. Supp. 3d 628, 635 (E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N. America,
269 F. Supp. 2d 612, 615 n. 1 (E.D. Pa. 2003); Charles A. Wright, Arthur R. Miller et al., 10A
Fed. Prac. and Proc. § 2720 (3d ed. 1998)).
In reviewing the evidence, the court draws all reasonable inferences in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v.
Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is
not the court’s role to weigh the disputed evidence and decide which is more probative, or to
make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998). “Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An
issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard
to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier of fact
to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at
587; Huston, 568 F.3d at 104.

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II. Relevant Facts.
Defendants Dr. Clark and Mrs. Clark are the record owners of a duplex located at
100-122 Howard Street, Pittsburgh, Pennsylvania 15235 (the “Subject Property”). (Docket No.
40 at ¶ 2). The Subject Property was rented by the plaintiff, Brandy Sokol, a.k.a. Brandy Foster,
from the individually-named defendants, Brent Clark and Judy Clark. (Id. at ¶ 3).
Ms. Sokol did not pay her rent for the month of August, 2015. (Docket No. 119-4 at 15).
On August 17, 2015, Mrs. Clark hand delivered to Ms. Sokol a Notice to Pay Rent or Quit.
(Docket No. 122-1). On September 5, 2015, Mrs. Clark posted a notice to vacate property by
“POSTING NOTICE ON PREMISES IN A CONSPICIOUS PLACE ON THE LEASED
PROPERTY.” (Docket No. 106-5 at 2). On September 8, 2015, counsel for Ms. Sokol sent a
letter by facsimile to Dr. Clark on Ms. Sokol’s behalf in which she complained that Dr. Clark
was sexually harassing her. (Docket Nos. 119-9, 119-11 at 76).
On September 15, 2015, Mrs. Clark filed a Landlord Tenant Complaint in the Magisterial
District Court, docket number MJ-05-2-06-LT-0000449-2015 against Ms. Sokol. (Docket No.
106-2). A hearing was held on September 23, 2015 and the magisterial district judge entered
judgment in favor of Mrs. Clark in the amount of $4594.50. (Docket Nos. 106-3, 112-1).
On October 23, 2015, Ms. Sokol appealed the judgment. (Docket No. 108 at ¶ 3). Mrs.
Clark then filed a Landlord Complaint against Ms. Sokol, seeking possession and a dollar
amount of $5018.16. (Id. at ¶ 4). Ms. Sokol filed an Answer to Plaintiff’s Complaint, New
Matter and Counter-Claims in which she alleged a civil conspiracy to retaliate claim against Mrs.
Clark. (Id. at ¶ 5). Specifically, Ms. Sokol alleged that Mrs. Clark filed the complaint for due
rent because Ms. Sokol had demanded her due wages from Dr. Clark pursuant to the

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Pennsylvania Wage Payment Collection Law (“PWPCL”). (Docket No. 106-6 at ¶¶ 8-14). Mrs.
Clark filed preliminary objections to the counter-claim and a supporting brief. (Docket No. 1067). In support of the preliminary objections, Mrs. Clark argued that the counterclaim should be
dismissed for improper venue and because the counterclaim was one for violation of the
Dragonetti Act, 42 Pa.C.S.A. § 8351, and it did not meet the elements of such a claim in that
such a claim “requires that ‘[the] proceedings have terminated in favor of the person against
whom they are brought,” and “[h]ere, the underlying litigation is still pending.” (Docket No.
106-7 at 5-8, 21-22) (emphasis in original). Ms. Sokol filed a response to the preliminary
objections. (Docket No. 106-8). By Order of Court dated April 2, 2016, without any
accompanying analysis, a state court judge sustained Mrs. Clark’s preliminary objections and
ordered that Ms. Sokol’s new matter and counterclaim “are dismissed forthwith.” (Docket Nos.
106-9, 112-2 at 2).
An arbitration panel heard the case on June 23, 2016 and on the same day, ruled in favor
of Mrs. Clark, awarding her $1986.00. (Docket Nos. 106-10, 112-3). Ms. Sokol appealed the
arbitration award and the case was set to go to trial on September 16, 2016. (Docket Nos. 10611, 111 at ¶ 14). On September 13, 2016, Mrs. Clark filed a praecipe to discontinue without
prejudice pursuant to Pa.R.Civ.P. 229, signed by counsel for both parties, asking that the
department of court records – civil division “[k]indly mark the above docket as discontinued
without prejudice pursuant to Pa.R.C.P. 229.” (Docket. No. 106-12). Ms. Sokol then filed her
Complaint in this case on September 26, 2016. (Docket No. 1).

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III. Legal Analysis of Plaintiff’s Motion for Summary Judgment.
A. Count I of Counterclaim- Breach of Contract claim.
1. Collateral Estoppel argument.
In support of her motion as to Count I of Dr. Clark and Mrs. Clark’s counterclaim against
her, Ms. Sokol first argues that she is entitled to summary judgment on the breach of contract
claim filed against her because the claim is identical to a claim previously litigated in state court
and therefore, Dr. Clark and Mrs. Clark are collaterally estopped from litigating the claim in
federal court. (Docket No. 110 at 1-2). In particular, Ms. Sokol contends:
First, the issues in both the Court of Common Pleas case and in the Counterclaim
in the instant matter are unpaid rent and property damage. SOF ¶ 3; ECF No. 26.
Secondly, there was a final judgment in the form of a discontinuance in the Court
of Common Pleas of Allegheny County. SOF ¶¶ 13-14. Counterclaim Defendant,
by virtue of Counterclaim Plaintiffs’ discontinuance, was successful in Allegheny
County. Id. Third, the Counterclaim Defendant [Ms. Sokol] and Counterclaim
[Plaintiff] Judy Clark were both parties in the Court of Common Pleas case. SOF ¶
3. Lastly, Counterclaim [Plaintiffs] had every opportunity to litigate the issue in the
Court of Common Pleas case, however, they chose to discontinue the matter. SOF
¶ 11-12.
(Id. at 4).
In response, Dr. Clark and Mrs. Clark contend that collateral estoppel is not applicable
with respect to their breach of contract claim against Ms. Sokol for a number of reasons. One,
the issues in the prior state court case are not identical with the issue presented in this action;
“[n]ot only are the damages claimed different, with the Common Pleas action seeking
possession, unpaid rent and property damages, and the instant action seeking unpaid rent and
property damages, but even the parties themselves are different, as the Common Pleas action was
between Judy Clark and Brandy Foster [Sokol], while the instant action is between Brent Clark
& Judy [Clark] and Brandy Sokol.” (Docket No. 115 at 3-4). Two, because the state court case
was discontinued, “the Court of Common Pleas did not hear the prior case, they have not reached
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any decision on the matter.” (Id. at 4). Three, there was not a final judgment on the merits
because a discontinuance is not a final judgment. (Id.).
In GGNSC Uniontown, LP v. Bauer, No. CV 15-231, 2015 WL 9304508 (W.D. Pa. Dec.
22, 2015), the court explained:
Federal courts “must give the acts of Pennsylvania's courts the same full faith and
credit in federal court that they would enjoy in Pennsylvania's courts.” Greenleaf
v. Garlock Inc., 174 F.3d 352, 357 (3d Cir. 1999) (citations omitted). In determining
the preclusive effect of a state court decision, this Court should look at the law of
the adjudicating state, Pennsylvania. See id. at 357-58. Additionally, “[b]ecause of
the similarity of issue preclusion under Pennsylvania law and federal common
law,” federal courts may also “draw on federal authority” in analyzing issue
preclusion. Penn Mont Securities v. Frucher, 502 F.Supp.2d 443 at n. 8 (E.D. Pa.
2007). Under Pennsylvania law, another court's determination of an issue has
preclusive effect if: (1) the issue decided in the prior adjudication was identical to
the one presented in the later action; (2) there was a final judgment on the merits;
(3) the party against whom issue preclusion is asserted was a party or in privity with
a party to the prior adjudication; and (4) the party against whom it is asserted has
had a full and fair opportunity to litigate the issue in question in the prior action.
Cemex, Inc. v. Indus. Contracting & Erecting, Inc., 2006 WL 1785564, at *3 (W.D.
Pa. June 26, 2006) aff'd, 254 F. App’x 148 (3d Cir. 2007) (citing Tucker v.
Philadelphia Daily News, 848 A.2d 113, 120 (Pa. 2004)).
GGNSC Uniontown, LP, 2015 WL 9304508, at *2. With respect to the query of “whether there
was a final judgment on the merits, in Boardakan Rest. LLC v. Atl. Pier Assocs., LLC, No.
CIV.A. 11-5676, 2013 WL 5468264 (E.D. Pa. Oct. 2, 2013), the district court explained: “[a]n
‘on the merits’ judgment is one based on substantive law, rather than procedural rules.”
Boardakan Rest. LLC, 2013 WL 5468264, at *7 (citing Brown v. Cooney, 442 A.2d 324, 326
(Pa. Super. 1982)). See also Pennsylvania v. Holder, 805 A.2d 499, 502 (Pa. 2002) (concluding
that under Pennsylvania law, a party is collaterally estopped from re-litigating an issue when: “1)
the issues in the two actions are sufficiently similar and sufficiently material to justify invoking
the doctrine; 2) the issue was actually litigated in the first action; and 3) a final judgment on the
specific issue in question was issued in the first action”).

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In the instant matter, the state court action was voluntarily discontinued by Mrs. Clark,
the plaintiff in the case, prior to the trial court’s de novo review of her breach of contract claim
against Ms. Sokol. (Docket. No. 106-12). As such, there was not a judgment based on
substantive law, the state court proceeding did not result in a final judgment on the merits, and
Dr. Clark and Mrs. Clark are not collaterally estopped from bringing their breach of contract
counterclaim against Ms. Sokol in this action. To the extent that Ms. Sokol’s motion for
summary judgment on the breach of contract counterclaim against her is based upon the Clark
Defendants being collaterally estopped from bringing such a counterclaim, her motion for
summary judgment shall be denied.
2. Statute of Limitations argument.
Ms. Sokol also contends that Dr. Clark and Mrs. Clark’s counterclaim against her for
breach of contract is barred by the applicable statute of limitations and therefore, summary
judgment on the counterclaim should be granted in her favor. (Docket No. 110 at 4-6).
“Counterclaim Plaintiffs voluntarily dismissed their action and were free to refile within the
statute of limitation. Counterclaim Plaintiffs’ motive, as well as Counterclaim Defendant’s
motive, is irrelevant, unless either party dismissed the action to harass the other party.
Counterclaim Plaintiffs chose not to refile their claims prior to the expiration of the statute of
limitations; therefore, their claims are now time-barred.” (Id. at 4). The statute of limitations
which Plaintiff contends is applicable to bar the breach of contract claim against her is that set
forth in 42 Pa.C.S. § 7342(b). (Id.). This statutory subsection provides: “(b) Confirmation and
judgment.--On application of a party made more than 30 days after an award is made by an
arbitrator under section 7341 (relating to common law arbitration), the court shall enter an order
confirming the award and shall enter a judgment or decree in conformity with the order. Section

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7302(d)(2) (relating to special application) shall not be applicable to proceedings under this
subchapter.” 42 Pa. Stat. and Cons. Stat. Ann. § 7342 (West). Ms. Sokol further explains:
This claim was scheduled for a jury trial from an arbitration appeal in the Court of
Common Pleas of Allegheny County. SOF ¶ 8, 9. The statute of limitations to file
for a de novo trial from arbitration was July 23, 2016, or thirty days from the
arbitration award entered on June 23, 2016. 42 Pa.C.S. § 7342(b); SOF ¶ 7.
Counterclaim Defendant filed her appeal on July 12, 2016, the nineteenth day of
the appeal period, leaving eleven days remaining on the statute of limitations. SOF
¶ 8. A trial was scheduled for September 16, 2016. SOF ¶ 9. On September 2, 2016,
Clarks’ attorney asked if the undersigned “considered switching to non-jury.” SOF
¶ 10. On September 9, 2016, Counterclaim Plaintiffs’ attorney filed a Praecipe to
Discontinue the claim. SOF ¶ 11. On September 13, 2016, Counterclaim Plaintiffs’
attorney asked if the undersigned was going to “sign off on the settle and
discontinue” and that the undersigned has “no basis to not sign off on it.” SOF ¶
12. Counterclaim Plaintiffs had the burden of production and the burden of
persuasion at the jury trial. SOF ¶ 14.
On September 15, 2016, the jury trial was discontinued. SOF ¶ 13. When the jury
trial was discontinued, the Counterclaim Plaintiffs had eleven days to re-file the
claims under the statute of limitations. Counterclaim Plaintiffs did not file their
claims for another sixty-three days when Counterclaim Plaintiffs filed their
counterclaim in this matter. SOF ¶ 16. The counterclaims in this matter are identical
to the claims at issue in the arbitration award. SOF ¶ 17. Therefore, Counterclaim
Defendant is entitled to Summary Judgment as the Counterclaim Plaintiffs are
barred by the Statute of Limitations.
(Docket No. 110 at 5-6).
In response, Dr. Clark and Mrs. Clark contend first that Ms. Sokol is not entitled to
summary judgment on the breach of contract counterclaim because the proper limitations period
under Pennsylvania law for their breach of contract claim against Ms. Sokol is four years per 42
Pa. Cons. Stat. § 5525, and therefore, because the events underlying the claim occurred in
August 2015, the applicable limitations period has not yet run on the breach of contract claim
against Ms. Sokol. (Docket No. 115 at 5). Dr. Clark and Mrs. Clark further argue that Ms.
Sokol’s contention that the limitations period has run on their breach of contract claim pursuant
to 42 Pa.C.S. §7342(b) because in the state court action Mrs. Clark did not re-file her breach of

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contract claim against Ms. Sokol within eleven days after she voluntarily discontinued it simply
is legally and factually incorrect.
The Court finds that, pursuant to 42 Pa. Cons. Stat. Ann. § 5525, the Clarks had four
years from the date Ms. Sokol allegedly breached the rental agreement entered into by the parties
to bring their breach of contract claim against Ms. Sokol. 42 Pa. Cons. Stat. § 5525 (West).
That Mrs. Clark had voluntarily discontinued the state court case against Ms. Sokol after the
arbitration board had entered judgment in favor of Mrs. Clark and Ms. Sokol had appealed the
judgment to the Court of Common Pleas does not affect or otherwise shorten the applicable
limitations period. See Williams Studio Div. of Photography by Tallas, Inc. v. Nationwide Mut.
Fire Ins. Co., 550 A.2d 1333, 1335 (1988) (“In sum, we hold that a voluntary nonsuit operates to
leave the parties as if no action had been filed at all.”). In other words, 42 Pa. Cons. Stat. Ann.
§7342(b) simply does not compel the result sought by Ms. Sokol. See U.S. Claims, Inc. v.
Dougherty, 914 A.2d 874, 877 (Pa. Super. 2006) (“This Court has consistently interpreted
section 7342(b) to require that any challenge to the arbitration award be made in an appeal to the
Court of Common Pleas, by filing a petition to vacate or modify the arbitration award within 30
days of the date of the award. A party must raise alleged errors in the arbitration process in a
timely petition to vacate or modify the arbitration award or the claims are forever waived.”)
(citations omitted).
Having held that the applicable limitations period on the breach of contract counterclaim
is four years, the Court must next determine whether the claim has been timely filed. Viewing
the evidence of record in a light most favorable to Dr. Clark and Mrs. Clark, the events that
triggered the applicable limitations period for the counterclaim occurred on or August 1, 2015,
when Ms. Sokol did not remit her monthly rent payment as required under the terms of the

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parties’ contract. (Docket No. 119-4 at 15). The breach of contract counterclaim was filed in
this case on November 17, 2016. (Docket No. 26). Accordingly, the four-year statute of
limitations had not run on the Clark Defendants’ breach of contract counterclaim when they filed
the claim on November 17, 2016, and Ms. Sokol’s motion for summary judgment on the breach
of contract counterclaim against her based on the statute of limitations having expired shall be
denied.
IV. Legal Analysis of Clark Defendants’ Motion for Partial Summary Judgment.
A. Count XI- Ms. Sokol’s malicious prosecution claim.
As stated previously, Count XI of Ms. Sokol’s Complaint alleges a malicious prosecution
claim against Dr. Clark and Mrs. Clark based upon Mrs. Clark allegedly initiating a landlordtenant lawsuit against Ms. Sokol without probable cause to do so in retaliation for Ms. Sokol
making a demand related to the enforcement of her rights pursuant to Title VII, the PHRA, the
FHA, and the PWPCL. (Docket No. 1 at ¶¶ 84-87).
To prove a malicious prosecution claim under Pennsylvania law, a plaintiff must show
that the defendant ‘instituted proceedings against the plaintiff 1) without probable cause, 2) with
malice, and 3) the proceedings must have terminated in favor of the plaintiff.’” Zimmerman v.
Corbett, 873 F.3d 414, 418 (3d Cir. 2017) (quoting Kelley v. Gen. Teamsters, Chauffeurs &
Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988)).
1. Collateral Estoppel.
The defendants first contend that summary judgment should be granted in their favor as
to Ms. Sokol’s malicious prosecution claim against them because the issues of whether Mrs.
Clark had probable cause to bring a landlord tenant action and whether she brought the landlord
tenant action against Ms. Sokol solely to retaliate against her for exercising her “Protected

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Activity” rights have already been litigated in the state court action, and therefore, Ms. Sokol is
collaterally estopped from asserting these issues in this case. (Id. at 6-7). More specifically, the
defendants contend:
In Sokol’s New Matter to the Landlord-Tenant Complaint at Exhibit E, she alleged
sexual harassment by the Defendants at her residence; and her Counterclaim alleged
the Defendants conspired to evict her in retaliation of the sexual harassment
allegations. Judge Wettick dismissed both the New Matter and Counterclaim from
the record, thereby striking the issue of civil conspiracy and wrongful eviction
entirely. See Exhibit H. The Plaintiff is precluded from relitigating these same
issues per the doctrine of Collateral Estoppel, as the Plaintiff and Defendants
previously litigated the same claims in arbitration of the Allegheny County Court
of Common Pleas where the board of arbitrators ruled in favor of the Defendants,
on the merits of the case. See Exhibit I.
(Id. at 7).
In response, Ms. Sokol argues that her state court malicious prosecution claim was
dismissed by way of preliminary objections and “disposition by way of preliminary objection is
not a decision on the merits of the claim.” (Docket No. 120 at 5).
The Court will deny the defendants’ motion for summary judgment on the plaintiff’s
malicious prosecution claim against Dr. Clark and Mrs. Clark premised upon a collateral
estoppel/claim preclusion argument for two reasons. First, contrary to the defendants’ argument,
in her state court counterclaim, Ms. Sokol did not allege that the defendants conspired to evict
her in retaliation of the sexual harassment allegations, but rather alleged “Plaintiff and B. [Clark]
conspired or otherwise agreed to file a false claim to retaliate against [Sokol] for demanding her
due wages.” (Docket No. 106-6 at ¶14). Accordingly, Ms. Sokol would not be collaterally
estopped from bringing a malicious prosecution claim against Dr. Clark and Mrs. Clark premised
upon the defendants’ retaliating against Ms. Sokol for her complaining of sexual harassment by
Dr. Clark. Second, Mrs. Clark’s preliminary objections in the state court action asserted both a
procedural basis (wrong venue) and a substantive basis (failure to state a claim upon which relief
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can be granted) for the dismissal of Ms. Sokol’s counterclaim, in granting Mrs. Clark’s
preliminary objections and dismissing the counterclaim, the state court did not explain on which
basis it was granting the preliminary objections and dismissing the claim, and absent such
evidence, this Court cannot know whether the claim was dismissed for a substantive reason,
which is an adjudication on the merits, or for a procedural reason, which is not an adjudication
on the merits. See Untracht v. Fikri, 454 F. Supp. 2d 289, 305-06 (W.D. Pa. 2006) (court denied
motion for summary judgment that contended that claims were barred by collateral
estoppel/claim preclusion where the orders dismissing earlier state court cases did not specify on
which preliminary objection the cases were dismissed and therefore, the court could not
determine whether or not there had been an adjudication of the claims on the merits).
2.

Sufficiency of evidence in support of malicious prosecution claim.

Dr. Clark and Mrs. Clark further argue that summary judgment must be granted in their
favor with respect to Ms. Sokol’s malicious prosecution claim against them because the plaintiff
has not come forward with evidence to support the claim. In support thereof, the defendants first
argue that the underlying litigation did not terminate in Ms. Sokol’s favor. (Docket. No. 107 at
3-5). Rather, defendants contend, “[t]his matter had been litigated at multiple different judicial
levels, all of which resolved in favor of Judy Clark,” and then the parties jointly agreed to
discontinue the matter without prejudice, as supported by the praecipe to discontinue being
signed by attorneys for both parties. (Id.). They further argue that in light of the ruling of the
magisterial district judge in Mrs. Clark’s favor and the unanimous decision of the board of
arbitrators finding in favor of Mrs. Clark, “[i]t is impossible to find that Judy Clark acted in a
grossly negligent manner or without probable cause.” (Id. at 5-6).

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In response, Ms. Sokol contends that she has come forward with sufficient evidence to
show that the defendants’ conduct in filing the landlord tenant complaint was initiated or
maintained without probable cause and for retaliatory reasons in that she has presented evidence
that shows that the landlord tenant complaint was filed on September 15, 2015, seven days after
she engaged in protected activity on September 8, 2015 when her attorney faxed to Dr. Clark a
letter accusing Dr. Clark of sexually harassing Plaintiff. (Docket No. 120 at 4). Ms. Sokol
further contends that when she appealed the arbitration board’s decision, which entitled her to a
de novo review of Mrs. Clark’s complaint and Mrs. Clark thereafter discontinued the state court
action and did not refile it within the time permitted for appealing an arbitration decision, the
action terminated in her favor. (Id. at 4-5).
In reply, the defendants contend that Ms. Sokol has not adduced any evidence to support
that there was not probable cause for Mrs. Clark to bring the eviction suit. (Docket No. 122 at 3).
The defendants further posit that the plaintiff’s temporal proximity argument does not raise a
genuine issue of material fact as to her malicious prosecution claim because the evidence of
record supports that Mrs. Clark started the eviction process prior to Ms. Sokol faxing her letter
claiming discrimination and harassment to Dr. Clark. (Id.). More specifically, the defendants
argue that the evidence of record shows that prior to Ms. Sokol sending the letter to Dr. Clark on
September 8, 2015, Mrs. Clark had, on August 17, 2015 and September 5, 2015, provided Ms.
Sokol with a Notice to Pay Rent or Quit, and “[a]s such, by providing the notice to quit, Judy
Clark had initiated the eviction action, prior to any protected activity by Plaintiff and thus, there
is no temporal proximity.” (Id. at 4). Finally, the defendants argue that the discontinuance of the
state court litigation without prejudice “does not effectuate a final judgment on the merits” and

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therefore, Ms. Sokol has not come forward with evidence that the state court action terminated in
her favor. (Id. at 5-6).
Viewing the facts of evidence in a light most favorable to Ms. Sokol, the Court finds that
based on the temporal proximity between the time Ms. Sokol’s attorney sent the letter to Dr.
Clark on September 8, 2015, and the time Mrs. Clark filed her landlord complaint on September
15, 2015, there is a genuine issue of material fact as to whether Mrs. Clark initiated or
maintained the proceedings in state court, which included requested relief of possession and
damages, for retaliatory reasons. In so holding, the Court recognizes that the record evidence
shows that prior to the letter from Plaintiff’s counsel being sent to Dr. Clark on September 8,
2015, informing him that Plaintiff was accusing him of sexual harassment, Mrs. Clark had begun
the process for evicting Plaintiff in that Mrs. Clark had on August 17, 2015, hand delivered to
Ms. Sokol a Notice to Pay Rent or Quit and on September 5, 2015, had posted a notice to vacate
property by “POSTING NOTICE ON PREMISES IN A CONSPICIOUS PLACE ON THE
LEASED PROPERTY”3 and that under Pennsylvania statutory law, “a landlord must give a
tenant ... notice in writing before commencing eviction proceedings.” Williams v. Kusnairs Bar
& Tavern, 288 F. App’x. 847, 849–50, 2008 WL 2893693, at *2 (3d Cir. July 29, 2008) (citing
68 Pa. Stat. Ann. § 250.501). Indeed, in Brooker v. Altoona Hous. Auth., No. 3:11-CV-95, 2013
WL 2896814 (W.D. Pa. June 12, 2013), the district court stated: “[i]t is undisputed that a “notice
to quit” was placed on the door to Brooker's apartment. That is the first step that must be taken
by ‘[a] landlord desirous of repossessing real property from a tenant’” and “[a]t least one
Pennsylvania court has referred to the service of a ‘notice to quit’ as the initiation of ‘eviction
proceedings.’” Brooker, 2013 WL 2896814, at *18 (citing 68 Pa. Stat. §250.501(a); Pheasant

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(Docket Nos. 106-5 at 2; 122-1).

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Hill Estates Associates v. Milovich, 33 Pa. D. & C. 4th 74, 76 (Ct. Comm. Pl. 1996)).
Nevertheless, viewing the evidence in light most favorable to Ms. Sokol, a reasonable jury could
conclude that Mrs. Clark initiated or maintained the proceedings before the magisterial district
judge for retaliatory reasons.
Having so held, the Court further finds that even viewing the evidence in a light most
favorable to Ms. Sokol as the non-moving party, the plaintiff has not come forward with any
evidence that raises a genuine issue of material fact as to whether Mrs. Clark had probable cause
to initiate or maintain the state court proceedings. In other words, the temporal proximity
between the receipt of the September 8, 2015 letter and Mrs. Clark filing the landlord complaint
on September 15, 2015 does not raise a genuine issue of material fact on the probable cause
element of the plaintiff’s malicious prosecution claim. Notably Ms. Sokol has not submitted any
evidence that suggests that she had paid her rent in August 2015 and to the contrary, the evidence
of record, in particular the magisterial district judge’s decision in favor of Mrs. Clark on her
landlord complaint and the board of arbitrators’ ruling in favor of Mrs. Clark on her landlord
complaint, supports the position that Mrs. Clark had probable cause to file and maintain a
landlord complaint against Ms. Sokol in state court. Accordingly, the defendants’ motion for
summary judgment on the plaintiff’s malicious prosecution claim shall be granted.
B. Ms. Sokol’s claim for emotional distress and damages thereto
The defendants also move for summary judgment on any claim by Ms. Sokol for
emotional damages and/or emotional distress. (Docket No. 107 at 8). This argument is premised
upon the allegation in the plaintiff’s Complaint that “Ms. Sokol is currently seeking the help of a
therapist to deal with the hostile work environment and extreme sexual harassment that Ms.

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Sokol endured while working for the Defendant Corporation, and while living as Defendants’
tenant.” (Docket No. 1 at ¶ 21).
In support of this part of their motion for summary judgment, the defendants first contend
that to the extent that Ms. Sokol is attempting to state a claim for intentional infliction of
emotional distress (“IIED”), summary judgment must be granted in their favor because based
upon the medical records from Chestnut Ridge Counseling Services contained in the record, the
plaintiff “is unable to provide evidence that [Dr. Clark’s] behavior caused emotional distress and
that distress was severe,” two of the elements that must be established for claim for IIED to be
successful. (Docket No. 107 at 9). The defendants further argue that the records from the
counseling service show that the plaintiff was seeking medical services “not for the ‘hostile work
environment and extreme sexual harassments that Ms. Sokol endured’ as claimed in Sokol’s
complaint, but rather for a lengthy history described in the records,” as evidenced by the fact that
the law suit is only mentioned once in the records and then only mentions sexual innuendos on
the part of Dr. Clark. (Id.). The defendants conclude their arguments by stating that a review of
the plaintiff’s medical records from Chestnut Ridge Counseling Services and Centerville Clinic
shows that “there was no emotional damage that can be demonstrated or will be able to be
demonstrated as to Sokol that could be correlated with the alleged actions of [Dr.] Clark.” (Id. at
9-10).
In response, the plaintiff argues that one of her claims is a claim for battery as to Dr.
Clark and that she does not need “independent medical evidence of a physical injury to recover
compensatory damages [for such a tort], including those for emotional distress.” (Docket No.
120) (citing Montgomery v. Bazaz-Sehgal, 798 A.2d 742, 751-52 (Pa. 2002); Romani-Ruby v.
Roman, 114 WDA 2015, 2016 WL 81773, at *2 (Pa Super. Jan. 6, 2016)). Ms. Sokol further

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contends “[e]ven if this court were to grant Defendant’s motion on common law grounds, Sokol
would still have opportunity under Third Circuit law to recover for emotional distress borne from
the violation of her civil rights. (Id.) (citing Bolden v. Southeastern Pennsylvania Transp. Auth.,
21 F.3d 29 (3d Cir. 1994) (holding expert testimony is not necessary to corroborate a claim for
emotional distress in a civil rights case)).
In reply, the defendants counter that emotional distress damages are not recoverable
absent expert testimony, which Ms. Sokol has not provided, and that the plaintiff’s argument
concerning damages for civil rights violations is inapplicable since this case does not involve a
§ 1983 civil rights claim. (Docket No. 122 at 7-10).
Upon review of Plaintiff’s complaint, as substantiated by her brief in opposition to the
defendants’ motion for summary judgment, the Court finds that Ms. Sokol is not alleging in her
complaint a claim for IIED. (See Docket No. 1). Accordingly, it is not necessary for the Court
to address any of the defendants’ arguments related to a claim for IIED. The Court further finds
that to the extent that Plaintiff’s complaint alleges a battery claim against Dr. Clark, see id. at
¶¶ 21, 77-83, Ms. Sokol does not need expert testimony to establish that Dr. Clark’s conduct
caused her emotional distress in order to recover damages for said emotional distress. In
Montgomery v. Bazaz-Sehgal, 742 A.2d 1125 (Pa. Super. 1999), the Pennsylvania Superior Court
held that in a battery case, mental anguish damages are recoverable absent expert medical
testimony where the causal connection between the conduct and the injury is “direct, obvious,
and foreseeable,” and on appeal, the Pennsylvania Supreme Court agreed: “[t]he law is well
established that expert testimony is not necessary where the cause of an injury is clear and where
the subject matter is within the experience and comprehension of lay jurors.” Montgomery v.
Bazaz-Sehgal, 798 A.2d 742, 752 (2002); Montgomery, 742 A.2d at 1133. Finally, contrary to

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the defendants’ argument, upon review of the plaintiff’s medical records from Chestnut Ridge
Counseling Services and Centerville Clinic, the Court does not find that these records “show[]
that ‘there was no emotional damage that can be demonstrated or will be able to be demonstrated
as to Sokol that could be correlated with the alleged actions of [Dr.] Clark’.” (Docket No. 122 at
9-10). For these reasons, the defendants’ motion for summary judgment on any claim by Ms.
Sokol for emotional damages and/or emotional distress shall be denied.
V. Conclusion.
For the foregoing reasons, the motion for summary judgment filed on behalf of the
plaintiff/counter-defendant Brandy Sokol (Docket No. 109) will be denied, and the motion for
summary judgment filed on behalf of the defendants Brent Clark and Judy Clark (Docket No.
106) will be granted as to the malicious prosecution claim filed by the plaintiff against Dr. Clark
and Mrs. Clark and denied as to any claim by the plaintiff for emotional damages and/or
emotional distress.
An appropriate Order follows.

Dated: November 22, 2017

By the Court:
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge

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