order concerning the amendment of the complaint.
3. History of Dilatoriness.
As recited above, plaintiffs consistent delays have been a
prominent feature in this case. Most significantly, at the time
this case was reassigned to this court, the St. Joseph
defendants had been dismissed due to plaintiffs' failure to
file an opposition brief within the period that had been
enlarged by the court pursuant to their request.
4. Bad Faith or Wilfulness of the Conduct.
This court's Order of October 26, 1990 was clear. It
specifically granted plaintiffs leave to amend counts three
through seven of the complaint "in accordance with the attached
memorandum" within twenty days. It did not grant leave to add
new factual allegations, new counts, or to amend counts other
than counts three through seven. In the memorandum issued with
the order, the court expressly indicated what would be required
for plaintiff to amend these counts in accordance with the
requirements of the law. Nothing in the order or the memorandum
expressly or impliedly gave any indication that the court was
granting leave to amend the entire complaint.
The filing of the second amended complaint, presenting
additional factual allegations, is further evidence of this
wilfulness or bad faith. Also, as noted above, the plaintiffs
did not request, and have not to this date requested, leave of
the court to file the second amended complaint, pursuant to
The unauthorized filing of the second amended complaint was,
therefore, in violation of the Federal Rules of Civil
Procedure. The content of both the first and second amended
complaint was in direct contravention of the court's order of
October 29, 1990. The court firmly believes that the clarity of
that order and the accompanying memorandum left no room for
doubt or confusion as to their import.
The ignoring of the rules of court and the clear parameters of
the court's order of October 29, 1990 constitute, at a minimum,
deliberate indifference of plaintiffs' counsel to the authority
of this court and the federal judicial system. His conduct
cannot charitably be characterized as "excusable neglect," but
rather as "callous disregard" of his professional
responsibilities. See National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747
(1976). Plaintiffs' counsel must be considered as willfully
acting in disregard of what he knew to be the rules of
procedure and the specific order of this court.
5. Effectiveness of Sanctions other than Dismissal.
Any sanction other than dismissal is inappropriate because of
the resulting prejudice to the defendants. The imposition of an
alternative sanction would necessarily permit the plaintiffs
the opportunity to file an amended complaint in accordance with
the court's previous order, and allow plaintiffs the
opportunity to oppose the previously unopposed motions to
dismiss. Alternative sanctions such as the imposition of costs
or attorney's fees simply would not alleviate the prejudice
caused by plaintiffs' actions.
The court is well aware that dismissal is a drastic sanction,
and that "[A]lternatives are particularly appropriate when the
plaintiff has not personally contributed to the delinquency."
Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d
Cir. 1982), cited in Poulis, supra, 747 F.2d at 866. However,
the combination of circumstances in this case does not appear
to render any of the possible alternatives as meaningful
6. Merit of the claim or defense.
Although plaintiffs' claims survived the St. Joseph defendants'
initial motion to dismiss, a review of this court's memorandum
issued on October 26, 1990, will reveal serious inadequacies
with these claims which were to be cured, if possible, by the
amendments directed by the court. After reviewing
the amended complaint, however, it appears that plaintiffs have
failed to cure the defects noted in the court's previous
More specifically, a count by count review of plaintiffs' first
amended complaint*fn6 reveals that it would not have
survived the defendants' motions to dismiss. Although
plaintiffs assert a breach of employment contract claim in
Count II based on the personnel policy manual, they fail to
identify the specific provision in the manual which they allege
the defendants to have breached.*fn7 In addition, they fail
to identify "unequivocal provisions" in the manual indicating
the employer's intent to be bound by it and renounce the
principal of at-will employment. Reilly v. Stroehmann Bros.
Co., 367 Pa. Super. 411, 416, 532 A.2d 1212, 1214 (1987),
appeal granted, 520 Pa. 577, 549 A.2d 137 (1988); see Martin
v. Capital Cities Media, Inc., 354 Pa. Super. 199, 216,
511 A.2d 830, 838-39 (1986), appeal denied, 514 Pa. 643,
523 A.2d 1132 (1987) (intent to overcome the at-will presumption in an
employee handbook must be stated with sufficient clarity).
Count III alleges that the defendants interfered with
plaintiffs' contractual relationship with Northeast. Although
plaintiffs do not identify the specific contractual
relationship, it appears they are referring to the contract
alleged in Count II. There can be no interference with a
contract which does not exist.
Plaintiffs' invasion of privacy claim asserted in Count IV
fails to cure the defects noted in the court's order directing
the amendment of this claim. They have failed to identify each
defendant's participation in the promulgation of the alleged
defamatory articles. Schaedler v. Reading Eagle Publication,
Inc., 39 F.R.D. 22, 23 (1965). Furthermore, plaintiffs'
defamation claim merely alleges that defendants caused the
publication of false and misleading newspaper articles. They do
not specifically identify the defamatory statements and a
review of the articles identified reveals them to report in
neutral terms the issues and concerns surrounding Northeast's
affiliation with St. Joseph's Hospital. Plaintiffs' claim of
publicity given to private life fails because plaintiffs'
allegations bear upon public, not private, matters. Doe v.
Dyer-Good, 389 Pa. Super. 151, 154-55, 566 A.2d 889, 891
by Harris v. Easton Publishing Co., 335 Pa. Super. 141,
153-54, 483 A.2d 1377, 1383-84 (1984).
Likewise, plaintiffs have failed to cure the defects noted by
the court in Count V, alleging intentional infliction of
emotional distress. The court directed plaintiffs to "amend
Count V of the complaint to identify the intentional or
reckless outrageous conduct and the perpetrators of such
conduct." Instead plaintiffs have substituted hyperbole and
conclusions of law for the factual allegations required by the
Since plaintiff's have failed to allege sufficiently their
defamation claim, their claim of conspiracy to commit libel and
slander asserted in Count VI similarly fails.
Plaintiffs' claim of interference with potential contractual
relationships asserted in count VII fails because they did not
plead the existence of a prospective contractual relationship
as required by Pennsylvania law and the court's previous order.
Count VIII, which alleges civil conspiracy, fails because
plaintiffs have failed to state a cause of action as to any of
the substantive counts underlying the alleged conspiracy.
Similarly, plaintiffs' remaining claims for loss of consortium
and for punitive damages, Counts IX and X respectively, fail
because of the insufficiency of the underlying allegations.
Additionally, it appears that most of the defendants would be
immune from suit. See 42 Pa.C.S.A. §§ 8332.2 and 8364*fn8
(providing qualified immunity for directors of non-profit
corporations); Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 123 f.n. 34, 104 S.Ct. 900, 920 f.n.
34, 79 L.Ed.2d 67, 93 f.n. 34 (1984) (county commissioners
acting within the scope of their authority may be immune under
the Eleventh Amendment).
Accordingly, after careful consideration of the foregoing
factors, the court shall, sua sponte, dismiss this case with
prejudice for plaintiffs' failure to comply with the court's
order permitting the amendment of counts three through seven of