Full opinion text
OPINION AND ORDER VAN ANTWERPEN, District Judge. Plaintiff Joan Hayfield (“Plaintiff’) brings this case against Home Depot U.S.A., Inc. and Artistic Checks Company (“Defendants”). Plaintiff alleges malicious prosecution against Home Depot and breach of contract and negligence against Artistic. Currently we consider summary judgment motions filed by Defendants, and deny both motions, for the reasons set forth hereinafter. The case will be immediately scheduled for trial. I. INTRODUCTION We have before us Defendant Home Depot’s Notice of Removal, filed on September 20, 2000 (“Removal”), Answer to Complaint with Affirmative Defenses by Defendant Artistic Checks Company, filed on December 13, 2000, Answer and Separate Affirmative Defenses to Complaint by Defendant Home Depot, Inc., filed on December 15, 2000, Reply by Defendant Home Depot, Inc. to Defendant Artistic Checks Company, Inc. Crossclaim, filed on January 5, 2001, Self-Executing Disclosure by Defendant Artistic Checks Comp., filed on February 14, 2001, Motion by Defendant Home Depot, Inc. for Summary Judgment, Memorandum, (“Home Depot SJ Mot.,” “Home Depot SJ Brief’), filed on July 5, 2001, Answer by Plaintiff Joan Hayfield to Motion for Summary Judgment filed by Home Depot, filed on August 9, 2001, Brief by Plaintiff Joan Hayfield in Support of Response to Motion for Summary Judgment pursuant to FRCP 56(b) (“Plaintiffs Response to Home Depot”), filed on August 9, 2001, Notice of Motion and Motion by Defendant Artistic Checks Comp, for Summary Judgment, filed on August 16, 2001, Brief by Defendant Artistic Checks Comp, in Support of Summary Judgment (“Artistic SJ Brief’), filed on August 16, 2001, Response by Defendant Home Depot, Inc. to Defendant Artistic Check’s Motion for Summary Judgment, Memorandum, filed on August 27, 2001, and Plaintiffs Answer to Motion for Summary Judgment Filed by Defendant Artistic Checks Company and Memorandum (“Plaintiffs Response to Artistic”), filed on September 14, 2001. II. BACKGROUND The most essential facts are undisputed. On July 13, 1999, Plaintiff made a $35.28 purchase at Home Depot, using a check which had been erroneously printed with an incorrect account number by Artistic. Artistic SJ Brief at 2-3. Plaintiff was unaware of Artistic’s error at the time she executed the check. Id. at 6. Plaintiff sent a substitute check to Home Depot for the amount of the original check plus a returned check fee on August 22, 1999. Home Depot SJ Brief at 2,6. Home Depot, after depositing Plaintiffs substitute check on September 14, 1999, initiated criminal prosecution of Plaintiff on October 7, 1999 under a state law designed to combat bad check writing. Id. Plaintiff was acquitted at a January 21, 2000 hearing. Id. at 2. The- following are the details related by Plaintiff in her deposition. “Deposition of Joan Hayfield,” May 3, 2001, provided as Exhibit to Artistic SJ Mot. (“Plaintiffs Depo.”). Plaintiff is an unsophisticated sales representative who rearranges products on grocery shelves. Plaintiffs Depo. at 6:23-7:18. She never graduated from high school and earns just over $10 an hour. Id. at 7:24-8:2. She purchased checks from Defendant Artistic because she learned these checks were less expensive than her bank’s checks. Id. at 10:12-14. Plaintiff was trying to save costs wherever possible because she had recently purchased a new house. Id. When Plaintiff received her new checks in the mail on July 13, 1999, she inspected her name and address but did not notice the account number printed on the checks. Id. at 14:8-15:6. Plaintiff has had a 14-year relationship with her bank, the Stroehmann Credit Union, and has never felt it necessary to inspect the numbers on her checks. Id. at 33:5-9. During her 14 years as a Stroehmann customer, Plaintiff has never bounced a check. Id. at 18:22-19:1. Plaintiff states that she “was so psyched [excited] when I got those checks, because they were my new checks in my new house, I was going to go to Home Depot and buy everything.” Id. at 33:20-22. Plaintiff, who was a regular customer at that Home Depot store in Bethlehem, went directly to this store on July 13 and used the first of her new checks from Artistic to make $35.28 in purchases. Id. at 34:7-11, 37:1-9. At the time, Plaintiff had approximately $2,000 in her bank account. Id. at 50:3-13; 191:20-192:3. Only later did Plaintiff discover that her checks were erroneously numbered. Id. at 20:7-19. She called the credit union the day after she learned one of her checks had bounced, and realized Artistic’s printing error in discussion with bank personnel. Id. at 21:4-13, 22:2-10, 24:9-25. Plaintiff “didn’t wait” to contact Artistic. Id. at 25:4-19. Artistic apologized, said it would reimburse Plaintiff and volunteered to send a letter explaining its error, which Plaintiff, in turn, could provide to creditors. Id. at 25:22-27:4. Artistic fulfilled these promises. Id. Plaintiff contacted all of the creditors, including Home Depot, to whom she had written checks, explaining the situation and offering to make an effective payment. Id. at 45:20-46:5. The Home Depot representative on the phone indicated that it would be acceptable for Plaintiff to return to the store to clear her debt. Id. at 47:18^8:12 On or about August 22, 1999, before Home Depot began its prosecution, Plaintiff drove one hour to the store where she had made her purchases, intending to make a substitute payment using an old, valid check issued by her credit union before she received Artistic’s checks. Id. at 45:13-16; 185:16-185:25. Plaintiff states that she planned to show Home Depot officials her good checks and those issued by Artistic, adding, “I had my license with me, my registration with me, my company car information with me, everything, to show these people that I was not trying to rip them off.” Id. at 48:7-12. Plaintiff was told that Home Depot would not accept another check. Id. at 48:15-49:19. She had not brought enough cash to make a payment. Id. at 57:1-16. Because Plaintiffs first check was considered a bounced check, Plaintiff understood that she would be required to pay an additional $20. Id. at 50:12-13. According to Plaintiff, she was predisposed to paying the $20 to end the situation, saying, “I didn’t argue the $20. I had said, you know what, you can have it.” Id. Plaintiff showed or read Artistic’s letter of explanation to approximately a dozen creditors and all but Home Depot accepted it without any problem. Id. at 16:12; 53:10-23. Although Plaintiff brought the Artistic letter to Home Depot to clear her name, no one would listen to her. Id. at 54:3-18. She explains, “Nobody would come down and talk to me. I mean, I had my license, all that stuff, to show that I’m, I was not a bad person. I wanted to clear me.” [sic] Id. at 54:3-18. On at least one occasion, Plaintiff spoke with Home Depot’s Manager, “Tina,” Christina Cunha, who later filed the criminal complaint. Id. at 63:11-67:19; 102:19-23. Plaintiff engaged in a conference call and “about a dozen” other discussions with an executive in Home Depot’s Georgia headquarters, Mickey Davis, explaining her entire situation, beginning with Artistic’s printing error. Id. at 66:20-67:9; 197:1-25. In total, she spent approximately $20 on phone calls to Georgia. Id. at 112:10-19. Home Depot acknowledges that Plaintiff made calls to its office in Georgia before she received a criminal summons. Id. at 68:6-14. Immediately after Plaintiffs visit to Home Depot on or about August 22, finding no resolution, Plaintiff took matters into her own hands and wrote Home Depot a letter of explanation with a replacement check for the $35.20 original charge plus the $20 penalty the company demanded. Id. at 69:22-71:2, 87:11-90:25. The replacement check was cashed by Home Depot and cleared on September 14, 1999. Id. at 76:14-77:10. In October 1999, Plaintiff received from Home Depot her criminal summons, an “arresting type of paper,” accusing her of paying bad checks. Id. at 77:17-78:14. Plaintiff states, “I took it as being, you know, like, I’m going to get arrested and go to jail. I’ve never gotten papers like that before in my life.” Id. at 78:6-8. Plaintiff paid over $183 bond to avoid in-. carceration. Id. at 79:15-16,19-20. Traumatized, Plaintiff began calling friends to calm her down. Id. at 82:2. Then she again called Mickey Davis, the Home Depot executive in Georgia, and weeping, she pleaded with him to stop the prosecution. Id. at 87:11-90:25, 197:1-25. She communicated to him her frustrations: “Did somebody cash my check and pocket the money? [W]here is the deposit slip? That’s what I kept asking Mickey Davis. Ask them for the deposit slip. Well, we can’t find it. That’s not my fault. That’s not my problem. You know, do better record keeping.” Id. at 131:5-24. She also cried on the phone with the District Justice’s office, which told Plaintiff that its hands were tied. Id. at 95:18. Between her October receipt of the summons and her January criminal hearing, Plaintiff was “upset constantly.” Id. at 103:14-104:3. As she explains, “You think about it constantly, constantly what’s going to happen. I never encountered something like this before.... I mean, I was, I’m still, I still am extremely upset over this. But this should not have been happening .... It’s, it’s in the back of my mind, it was in the back of my mind, what’s going to happen, who’s going to be there. You know, if you never had anything like this before, it kind of drives you a little crazy.” Id. Plaintiff spent $758.48 to hire an attorney (id. at 113:8-15) and missed work on several occasions, though she lost no pay as a result of the case. Id. at 116:19-22; 117:14-118:5; 123:10-123:16; 148:4-8. At Plaintiffs January 2000 hearing, Home Depot did not apologize. Id. at 192:10-193:4. On the contrary, the company sent unqualified representation, who merely “giggled and walked out.” Id. at 194:17-195:5; 197:1-25. Though Plaintiff was acquitted, she still worries that she may experience negative repercussions from her case “being on file.” Id. at 107:9-108:2; 108:16-19. She says, “I’m scared to death to fill out an application for fear they’re going to find out about this.... I mean, I’m actually a really good girl.” Id. at 109:18-112:1. Plaintiff is a very private person. Id. at 138:14-134:12. However, since Plaintiff filed this suit on August 31, 2000, she has received unwanted media attention, including several articles in local newspapers, reprinted on the Internet, and radio stories, which have caused her a great deal of humiliation and embarrassment. Id. at 137:24-138:8; 141:23-143:8; 146:21-147:2; 162:1-25; 164:13-18; 165:21-166:9; 168:2-8. Plaintiff still cries on the phone to her best friends because of the stress of this case. Id. at 151:17-152:3. On September 20, 2000, Home Depot removed this case to Federal Court based on diversity jurisdiction. III. DISCUSSION A. Statement of Jurisdiction 1. The Erie Doctrine When federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, federal courts must, “[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, ... [apply] the law of the State.” Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under the Erie Doctrine, federal diversity cases are governed by federal procedural laws, such as the Federal Rules of Civil Procedure. See Hanna v. Plumer, 380 U.S. 460, 473-74, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (“To hold that a Federal Rule of Civil Procedure must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the Constitution’s grant of power over federal procedure or Congress’ attempt to exercise that power in the Enabling Act.”). See also Henderson v. United States, 517 U.S. 654, 668, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (“[A] Rule made by Congress supercedes conflicting laws no less than a Rule this Court prescribes.”); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L.Ed. 253 (1825). Substantively, the forum state’s laws govern — in this case Pennsylvania’s, as established by the Pennsylvania Supreme Court. See Commissioner of Internal Revenue v. Bosch’s, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). As the Third Circuit explained, applying Erie, “While the Federal Courts should properly employ its [sic] own rules of procedure to secure the just, efficient and prompt determination of all claims inherent in any litigation before it, nevertheless the ultimate results reached must be such as accord with the substantive jurisprudence of the State of the forum.” (Citations omitted.) Smith v. Whitmore, 270 F.2d 741, 745 (3rd Cir.1959). Lower state court decisions are persuasive, but not binding, on the federal court’s authority; if the State’s highest court has not spoken on a particular issue, the “federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State.” Id.; see also Polselli v. Nationwide Mut. Fire Ins., 126 F.3d 524, 528 (3d.Cir.1997); Scranton Dunlop, Inc. v. St. Paul Fire & Marine Ins. Co., 2000 WL 1100779, at *1 (E.D.Pa.Aug.4, 2000) (“Since this is a matter of state law that has not been decided by the Pennsylvania Supreme Court, a prediction must be made as to how that court would rule if confronted with the same facts.”). 2: Complete Diversity Federal diversity jurisdiction exists where the parties have complete diversity and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. Plaintiff is a Pennsylvania citizen, while Home Depot is a Delaware Corporation with its principle place of business in Georgia and Artistic is organized and has its principle place of business in Arkansas. Complete diversity is therefore established. 3. Amount in Controversy The amount in controversy is not so readily determinable. Plaintiffs Complaint demands judgment against Home Depot “in excess of $50,000.00, plus punitive damages, costs, interest and said other relief as the court may deem proper,” and demands judgment against Artistic “in excess of $50,000.00 and such other relief as the court may deem proper under the circumstances.” Complaint at 9, 11. Defendant Home Depot’s Removal merely states without explanation that “the amount in controversy in this action is in excess of the amount of $75,0000.00 [sic], exclusive of interest and costs.” Removal at Line 7. Plaintiff did not respond to Home Depot’s Removal and has not raised subject matter jurisdiction in its responses to summary judgment. In light of Plaintiffs complaints against two unrelated defendants for an unspecific amount over $50,000 — and the fact that Plaintiffs pecuniary losses seem to be less than a thousand dollars — it is not obvious to us that Plaintiffs suit concerns a jurisdictionally-sound value over $75,000. It is obvious, however, that neither party gave the issue the consideration it requires. Nonetheless, federal procedural guidelines dictate that we may consider jurisdiction on our own at any time. In re Orthopedic “Bone Screw” Products Liability Litigation, 132 F.3d 152, 155 (3rd Cir.1997) (“Bone Screw”) citing Underwood v. Maloney, 256 F.2d 334 (3d Cir.), cert. denied, 358 U.S. 864, 79 S.Ct. 93, 3 L.Ed.2d 97 (1958). The parties may not confer jurisdiction by consent, i.e. by agreeing to remain before our Court despite jurisdictional deficiency. Meritcare, 166 F.3d at 217. The law is straightforward in this respect: if we determine that a case before us lacks subject matter jurisdiction, we have no authority under the Constitution to decide a case on the merits. Bone Screw, 132 F.3d at 155. Where a case has been removed from state court, like this case, it must be remanded without prejudice if jurisdiction is lacking. See Bradgate Associates v. Fellows, Read & Associates, 999 F.2d 745, 750-51 (3d Cir.1993) (finding that, where the district court lacks subject matter jurisdiction, it must remand a removed state court case). The sum Plaintiff claims controls the determination of the amount in controversy if her claim was made in good faith — the latter is not at issue here. St. Paul Mercury Indem. Co., 303 U.S. at 288, 58 S.Ct. 586; Dardovitch v. Haltzman, 190 F.3d 125, 135 (3rd Cir.1999). See also Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir.1993) (“The general federal rule is to decide the amount in controversy from the complaint itself.”). However, Plaintiff Hayfield does not specifically demand over $75,000 of either Defendant. Thus, to enable jurisdiction, we would be required to find that the claims against Defendants, which specifically demand more than $50,000 each, actually demand over $75,000 each. Otherwise, we must aggregate her claims in order to reach the jurisdictional minimum. 4. Aggregation Another court in our District recently confronted a similar situation. See C.D. Peacock, Inc. v. Neiman Marcus Group, Inc., 1998 WL 111738 (E.D.Pa.,1998). In Peacock, the plaintiff jewelry vendor alleged that he did not receive his merchandise from a supplier, Yurman, in breach of their contract, because the Neiman Marcus department store interfered with the contract and business relations between the two, monopolizing the supplier’s attention. Peacock, 1998 WL 111738 at *1. The supplier could be liable only for the value of the undelivered merchandise, well under the jurisdictional minimum, but the interfering department store was potentially liable for two counts sounding in tort, which when combined were worth over $100,000. Id. The court explained in a footnote, A single plaintiffs claims against more than one defendant are aggregated to determine the jurisdictional amount in controversy only if the claims are so “integrated” and “tied together by combination or conspiracy, as to make the relief single;” otherwise, “where a plaintiff alleges independent, several liability against more than one defendant, plaintiffs claims against each defendant must individually satisfy the amount in controversy requirement.” Peacock, 1998 WL 111738 at *2 FN2, citing Cottman Transmission v. Metro Distrib., 796 F.Supp. 838, 841 (E.D.Pa.1992) (internal quotations omitted), vacated on other grounds, 36 F.3d 291 (3d Cir.1994). However, after reiterating the Cottman rule, the Peacock court opted not to decide the issue of whether the action against the supplier was properly before the court, as follows: Peacock’s breach of contract claim against Yurman [the supplier] for $11,000.00 obviously does not, alone, satisfy the jurisdictional amount. Even assuming Peacock’s claim against Yurman is so “integrated” with Peacock’s claims against Neiman Marcus, it is still necessary that the two tort claims against Neiman Marcus be aggregated to attain the jurisdictional amount. Therefore, the primary issue to be resolved in my analysis is whether the two tort claims in Counts II and III can be properly aggregated. Id. After holding that the claims against Neiman Marcus could be aggregated, the court stated in a footnote without further explanation, “The Court exercises its supplemental jurisdiction over the breach of contract claim against Yurman for $11,000 in Count I.” Id. at *5 FN5. We are not content to assert such jurisdiction without analysis, like the court in the 1998 Peacock case, given the Third Circuit’s 1999 admonishment to strictly construe the removal statute in light of “the congressional intent to restrict federal diversity litigation.” Meritcare, 166 F.3d at 217. We find no Third Circuit rule respecting the aggregation of claims against multiple defendants to attain the amount in controversy requirement. We believe, however, that if multiple defendants jointly harm a common plaintiff, then the claims against these defendants are integrated and may be aggregated for the purpose of calculating the amount in controversy required for federal jurisdiction. For similar approaches, see Jewell v. Grain Dealers Mut. Ins. Co., 290 F.2d 11, 13 (5th Cir.1961) (“Claims against two or more defendants can be aggregated for the purpose of attaining the jurisdictional amount ... [only] if [the defendants] are jointly liable to the plaintiff.”) citing Walter v. Northeastern R. Co., 147 U.S. 370, 373 13 S.Ct. 348, 37 L.Ed. 206 (1893); Trustees of Boston University v. ASM Communications, Inc., 33 F.Supp.2d 66, 76 (D.Mass.1998) (citing Jewell); Libby v. City Nat’l Bank, 592 F.2d 504, 510 (9th Cir.1978) (The “tests for aggregating claims of one plaintiff against multiple defendants and multiple plaintiffs against one defendant are essentially the same ...: the plaintiffs claims against the defendants must be common and undivided so that the defendant’s liability is joint and not several.”); 14B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3704, pp. 145-156 (3d ed. 1998 & 2001 Pocket Part) (“It is only when two or more plaintiffs have a common, undivided interest in the subject matter of the litigation and a single title or right is involved in the litigation that the claims of the coparties have been added together in determining whether the statutory amount in controversy requirement has been satisfied. The same exception to the basic rule against aggregation applies when the suit is against multiple defendants.”). Though the Third Circuit has not ruled on aggregation of multiple defendants, the Court’s position is clear regarding aggregation of multiple plaintiffs’ separate and distinct claims: the Third Circuit opposes such aggregation, even of claims arising out of the same factual circumstances, unless each plaintiff individually reaches the $75,000 minimum. Meritcare, 166 F.3d at 218. In the 1999 Meritcare decision, the Third Circuit ruled on an apparent conflict being considered by many circuit courts — namely, how to reconcile 28 U.S.C. § 1367, enacted in 1990, creating supplemental jurisdiction, with the U.S. Supreme Court’s decision in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). Relying on the legislative history of Section 1367, the Meritcare court decided to preserve the essence of Zahn, rejecting other circuits’ holdings that Section 1367 statutorily eviscerated Zahn. Meritcare, 166 F.3d at 221. Discussions regarding the optimal scope of diversity jurisdiction attempt to balance fairness to all parties with judicial economy and the narrow mandate of the federal courts. In 1968, in Jacobson v. Atlantic City Hospital, the Third Circuit iterated the “single action” theory, interpreting a then-recent Supreme Court decision: [M]ost of the operative facts are common to the coupled claims, and in normal and most convenient and expeditious practice and procedure these claims would be tried together in a single lawsuit. In such circumstances, it seems reasonable and proper to view the lawsuit as a single “action” within diversity jurisdiction without requiring that each claim exhibits all of the jurisdictional requirements. Jacobson v. Atlantic City Hospital, 392 F.2d 149, 154 (3rd Cir.1968), citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 n. 13, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The Zahn decision effectively held (without directly saying so) that Jacobson and similar cases, in the name of fairness, overemphasized efficiency and convenience, unjustifiably expanding the federal courts’ limited jurisdiction. In Zahn, the plaintiffs were a class of landowners suing a polluter that damaged their properties by its actions. Zahn, 414 U.S. at 292, 94 S.Ct. 505. The Court held that those plaintiffs whose claims were worth less than the jurisdictional minimum could not be heard in federal court. Id. at 292, 94 S.Ct. 505. The court summed up its reasoning: “[0]ne plaintiff may not ride in on another’s coattails.” (Citations omitted.) Id. at 301, 94 S.Ct. 505. In Zahn, each landowner class member would have been required to make a separate showing of damages evidence. The Court refused to call into question “the accepted approach to cases involving ordinary joinder of plaintiffs with separate and distinct claims.” Id. at 302, 94 S.Ct. 505. Nothing in the Zahn decision, or in Mer-itcare following Zahn, suggests that the courts’ rulings would exclude from federal jurisdiction plaintiffs with a common and undivided interest (as opposed to separate and distinct ones) valued greater than the jurisdictional minimum. Neither would the ruling prevent aggregation in the case at bar involving jointly acting Defendants hable for more than $75,000. On the contrary, Zahn cited with approval the Supreme Court’s opinion in Walter v. Northeastern R. Co., which held that as early as 1893 it was “well settled” that “when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff.” Zahn, 414 U.S. at 295, 94 S.Ct. 505 FN3, citing Walter, 147 U.S. at 373, 13 S.Ct. 348. In other words, if Artistic and Home Depot are considered joint actors, then Plaintiffs claims against them may be properly aggregated. We note that our holding disagrees with that of a pre-Meritcare case from the District Court of New Jersey, in our circuit. In Garcia v. Gallo, the court held that one of the defendants, a nonprofit charitable hospital, could not be included in a federal suit with co-defendant doctors and hospital staff because the hospital benefitted from statutory charitable immunity preventing liability over $10,000. Garcia v. Gallo, 665 F.Supp. 360, 363 (D.N.J.1987). Therefore, the court decided, the hospital could not be held to answer for the minimum required amount in controversy to maintain a federal action. Id. The Garcia court held that it was “inconceivable” after Zahn that the Supreme Court “would countenance jurisdiction over a claim against a pendant defendant below the statutory minimum even if the parties were completely diverse.” Id. We believe that Garcia’s holding interprets Zahn and its progeny too broadly. The Supreme Court’s holding in Zahn, and Meritcare’s reaffirming of Zahn, do establish clearly, among other things, that the Third Circuit will not permit plaintiffs with separate and distinct claims under the jurisdictional minimum to aggregate their claims merely because they arise from a common set of facts. However, these courts do not address the situation faced here, with multiple defendants who are jointly and severally hable. The non-profit hospital in Garcia may also have been a joint tortfeasor, like Defendants in the case at bar. Garcia, 665 F.Supp. at 361. However, the Garcia court, in its discretion, could still have refused to hear the case against the hospital — without such a sweeping statement of law — by giving force to the New Jersey charitable immunity legislation barring hospital liability greater than $10,000. See, e.g., Pacilli v. Garden State Hosp., 1992 WL 17467, *1 (E.D.Pa.1992) (dismissing for lack of subject matter jurisdiction based on an insufficient amount in controversy a complaint against hospital benefit-ting from charitable immunity in New Jersey). In other words, the Garcia hospital defendant was already statutorily immune to any consideration as a joint actor which could subject it to impermissibly excessive liability. We believe the Garcia court omitted a critical issue by announcing a broad holding concerning aggregation of defendants without mentioning the traditional joint actors exception to the general rule. 5. Joint and Several Liability It remains for us to decide if Defendants are joint actors. If Defendants are treated as joint actors, they will be “jointly and severally hable” to the Plaintiff for her injuries. Baker v. ACandS, 562 Pa. 290, 755 A.2d 664, 669 (2000) (citing Incollingo v. Ewing, 474 Pa. 527, 379 A.2d 79, 85 (1977)). In a diversity case like ours, joint and several liability, like the right of contribution, is determined as a substantive matter rather than a procedural one; State law is therefore applied under Erie. See Smith v. Whitmore, 270 F.2d at 743-745 (applying the Pennsylvania Uniform Contribution Among Joint Tortfeasors Act in a diversity case because it gives a substantive state law right of contribution). See also, following Smith v. Whitmore, Fehlhaber v. Indian Trails, 45 F.R.D. 285, 286 (D.Del.1968) (“It is weh established in this Circuit that the right to contribution among joint tortfeasors in diversity cases is controlled by State law.”). Under Pennsylvania law, parties are. deemed joint actors when their actions build upon one another to produce an indivisible injury. In re Blatstein, 260 B.R. 698, 720 (E.D.Pa.2001), citing Baker v. AC & S, Inc., 729 A.2d 1140, 1146 (Pa.Super.Ct.1999) (“Under Pennsylvania law, it is well-established that if the tortious conduct of two or more persons combines to cause a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently.”), aff'd, 562 Pa. 290, 755 A.2d 664 (2000); Capone v. Donovan, 332 Pa.Super. 185, 480 A.2d 1249, 1251 (1984), citing Rest.2d Torts § 879 (“If the tortious conduct of two or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently.”). In other words, in determining whether Defendants acted as joint actors, we need not look for collaboration or concurrence among Defendants’ actions, but for an inseverable consequence of their actions. Whether harm is capable of apportionment is a question of law for the court. Capone, 332 Pa.Super. at 189, 480 A.2d 1249. The Restatement (Second) of Torts, section 879, cited in Capone, provides a helpful example: A negligently knocks B into the street, the impact causing B no substantial harm. Before B can arise, however, he is negligently run over by C.... B is severely hurt. For this harm B is entitled to a judgment for the entire amount of harm against A, C ... or [both] of them. Restatement (Second) of Torts § 879 (1977 Main Vol.), Illustration 2. We compare Artistic’s misprinting of Plaintiffs check with A’s action negligently knocking B into the street in the Restatement example, and Home Depot’s action in prosecuting Plaintiff with C’s action running over B. According to Plaintiffs version of the events, but for Artistic’s misprinted check, Plaintiff would have had no problem with Home Depot. But for Home Depot’s actions in charging Plaintiff, she would not have been prosecuted and no real harm would have been done — Artistic had already refunded the small value of the checks purchased and written a letter of explanation which was accepted by Plaintiffs other creditors. Plaintiffs Depo. at 25:22-27:4; 81:18-22. Only Home Depot’s action required Plaintiff to spend money defending herself and produced the distress that is the subject of this claim. Returning to the analogy, Plaintiff would have been able to return safely to the curb had Home Depot not run her over with its prosecution. The harms can thus be said to be indivisible, based on the Restatement’s guidance, even though Artistic was not alleged to have breached any duty to Plaintiff following its initial printing error. Plaintiffs claims against Artistic and Home Depot are integrated and may be aggregated for the purposes of calculating compliance with the jurisdictional minimum. Our decision is unaffected by the fact that Plaintiff alleges negligence against Artistic and an intentional tort against Home Depot. See Glomb by Salopek v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362 (Pa.Super.1987), appeal denied by Glomb by Salopek v. Glomb, 517 Pa. 623, 538 A.2d 876 (1988) (allowing negligent tort-feasors to be held jointly and severally liable with an intentional tortfeasor where parents’ negligence allowed a baby-sitter to assault their child). The Glomb court held that the fundamental inquiry is “whether a ‘logical, reasonable or practical’ basis for apportionment exists:” the respective theories of liability against the various defendants are not relevant to whether or not the parties can be considered joint actors. Id. at 212, 530 A.2d 1362 FN3. We are similarly unmoved by the fact that Plaintiff alleges alternative bases for relief — breach of contract, negligence and malicious prosecution. A federal district court in Minnesota confronted a very similar situation, holding, “A single wrong is not parlayed into separate and independent causes of action by multiplying the legal theories upon which relief is sought or by multiplying defendants against whom a remedy is sought for the same injury.” Frontier Enterprises, Inc. v. ICA Corporation, 319 F.Supp. 1156, 1159-60 (D.Minn.1970). In Frontier Enterprises, despite the complaint’s “rather general wording,” it alleged three bases of recovery in contract and tort “as alternative grounds for relief from a single wrong arising from the interrelated conduct and activities of all of the defendants.” Id. at 1160. We find the same to be true of Plaintiff Hayfield’s complaint, which mimics much of the same language throughout each count, though the counts contain different bases. See Complaint. As in the case at bar, the various bases in Frontier Enterprises all concerned a single actionable wrong — in that case, it was an advance sum of money paid by the plaintiff and wrongly withheld through the defendants’ actions. Frontier Enterprises, 319 F.Supp. at 1160. In our case, the single actionable wrong concerns Defendant Home Depot’s unsuccessful criminal suit premised on the bad check printed by Defendant Artistic. As the Frontier Enterprises court found, “The facts in each portion of the complaint relate to this one incident.” Id. As was the case in Frontier Enterprises (id.), Plaintiff Hayfield’s three bases are not separate and independent under the removal statute. See generally American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) (setting forth doctrine regarding separate and independent causes of action under the federal removal statute). Aggregating Plaintiffs three counts, we remain within Pennsylvania’s “one satisfaction” rule that although “a plaintiff may obtain a judgment against several tortfeasors for the same harm, [under Pennsylvania law] he or she is entitled to only one satisfaction for that harm.” Greenleaf v. Garlock, Inc., 174 F.3d 352, 357 (3rd Cir.1999). See also Suber v. Chrysler Corp., 104 F.3d 578, 588 (3d Cir.1997) (“If these claims are alternative bases of recovery for the same harm under state law, Súber could not be awarded damages for both, and a court should not aggregate the claims to arrive at the amount in controversy.”). Under the one satisfaction rule, Plaintiff could not recover, for example, $750 from Home Depot for having had to hire an attorney to defend the criminal prosecution, and then recover the same $750 from Artistic. The Súber holding dictates the common sense proposition that the $750 fee does not become $1500 toward the amount in controversy merely because Plaintiff could potentially recover the fee from either defendant. Our aggregation of Defendants is not to this end, but rather, because Defendants are joint actors who created an indivisible harm. We reach the minimum amount in controversy not by multiplying Plaintiffs actual and compensatory losses by the number of counts — a total which would still be well under $75,000 — but because of Home Depot’s substantial liability for punitive damages, as we discuss below. Finally, we hold that Plaintiff’s allegation of punitive damages only against Home Depot does not change our determination that Defendants are joint actors for purposes of calculating the amount in controversy. In Pennsylvania, the right to punitive damages “is a mere incident to a cause of action — an element which the jury may consider in making its determination — and not the subject of an action in itself.” Hilbert v. Roth, 395 Pa. 270, 276-277, 149 A.2d 648 (1959). As an “incident to a cause of action,” punitive damages constitute no “separate and distinct” cause of action against Home Depot which would prevent hearing Plaintiffs case against Artistic along with her case against Home Depot. For similar reasoning, see Frontier Enterprises, 319 F.Supp. at 1160 (“[I]t is immaterial that Frontier requests exemplary and punitive damages in addition to compensatory damages, since a prayer for such damages does not constitute a separate and independent cause of action for removal purposes.”). Punitive damages are apportionable. See generally Pennsylvania Suggested Standard Civil Jury Instructions, Pennsylvania Bar Institute, “14.02 (Civ) ‘Punitive Damages.’ ” In so holding, we do not follow the teetering nineteenth-century Pennsylvania rule, known as the McCarthy rule or the “most innocent defendant” rule, that punitive damages could only be assessed if the “most innocent of the defendants” were liable for them. Under the McCarthy rule, [A]s respects exemplary [or punitive] damages beyond compensation for the injury done to the plaintiff, [the jury should be instructed] to assess them according to the acts of the most innocent of the defendants, and if any defendant was not liable for exemplary damages, none should be included in the verdict. McCarthy v. DeArmit, 99 Pa. 63 (1881). Though this standard has been dead for all practical purposes for some time, it has remained standing, an old snag waiting for the wind of decision to completely knock it down. We follow the path of the Civil Jury Instructions Subcommittee of the Pennsylvania Supreme Court discussing the dubiousness of the “most innocent defendant” rule. Pennsylvania Suggested Standard Civil Jury Instructions, 14.02 (Civ) at 3. The Subcommittee explained that Pennsylvania law encourages joinder of tortfeasors in the same action, Pa.R.C.P. 2229(b), and that the McCarthy rule would “frustrate the policy underlying punitive damages” to punish a defendant that acts outrageously and deter future similar conduct, “for every defendant could ‘hide’ behind the actions of the least culpable or most innocent of them all.” Id. at 4. As the committee said, The anomaly of requiring a plaintiff to maintain a multiplicity of actions in order to have punitive damages properly assessed against each of many joint tort-feasors, while at the same time encouraging parties to consolidate common actions in an effort to minimize cost of litigation and expenditure of judicial resources can be corrected by recognizing the fallacy of McCarthy’s century-old reasoning. (Internal citations omitted.) Id. at 4-5. The Subcommittee cites in support the rules allowing joinder of defendants not interested in defending against all relief demanded (Rule 2231(f)) and allowing special findings to determine issues among the parties. (Rule 2257). Id. at 5. The danger originally redressed by McCarthy, that an innocent defendant would be stuck paying the bill for a more culpable one, is prevented by “the requirement that punitive damages be assessed by the jury separately against each defendant.” Id. Deterrence can only be served by making defendants pay commensurate with the outrageousness of their conduct. Id. For similar approaches in other jurisdictions, see Willoughby v. Sinclair Oil & Gas Co., 89 F.Supp. 994, 996 (D.C.Okl.1950) (“In many jurisdictions an injured party can obtain joint compensatory damages and separate punitive damages against joint tort-feasors in a single lawsuit.” (List of citations omitted.)); Ford Motor Credit Company v. Hill, 245 F.Supp. 796, 797 (W.D.Mo.1965) (allowing apportionment of punitive damages between joint tortfeasors where compensatory damages were not apportionable). 6. Valuation of the Claims Now that we have established that Plaintiffs causes of action against the Defendants should be aggregated, we examine whether the indivisible harms against her are more likely than not to concern over $75,000. As we do so, we do not consider the legal sufficiency of her claims or whether her legal theories are sound. Suber, 104 F.3d at 583. Plaintiff claims she is due the $20.00 returned check fee, “like $20” in phone bills arguing with officials at Home Depot’s Georgia headquarters and $758.48 attorney fees in defending the criminal complaint brought by Home Depot. Complaint at 4-9; Plaintiffs Depo. at 112:10-19,113:8-15. She further claims compensatory damages for loss of liberty or time, harm to reputation, physical discomfort, interruption of her employment, mental anguish, humiliation and injury to her feelings, and punitive damages for a total in excess of $50,000.00. Id. Plaintiffs enumerated pecuniary losses amount to $798.48. Thus, Plaintiffs non-pecuniary losses would more likely than not need to amount to a claim of at least $74,201.53 to enable her claims to attain the jurisdictional minimum in this court ($75,000.01). For similar reasoning, see Flail v. The Travelers Companies, 1998 WL 709296, *2 (E.D.Pa.1998). Compensatory damages are designed “to put the injured person in a position as nearly as possible equivalent to his or her position prior to the tort.” Moorhead v. Crozer Chester Medical Center, 564 Pa. 156, 765 A.2d 786, 790 (2001), citing Trosky v. Civil Service Comm’n, City of Pittsburgh, 539 Pa. 356, 652 A.2d 813, 817 (1995). Such damages cannot be presumed (Moorhead, id. citing Maxwell v. Schaefer, 381 Pa. 13, 112 A.2d 69, 73 (1955)) and must be proven by competent evidence. Maxwell, id. In a malicious prosecution action, compensatory damages may include, inter alia, harm to reputation, mental anguish, humiliation and injury to feelings. Wecht v. PG Pub. Co., 725 A.2d 788, 789 (Pa.Super.1999), appeal denied by Wecht v. P.G. Pub. Co., 560 Pa. 710, 743 A.2d 922 (1999). Plaintiff indicates that she lost time at the criminal hearing as a result of Home Depot’s allegedly malicious prosecution, and that her job was interrupted for the appointments with her attorney, for hearings and her deposition. Plaintiffs Response to Home Depot at 5; Plaintiffs Depo. at 147, 156. However, Plaintiff acknowledges that she did not lose any money based on the time she missed from work. Plaintiffs Depo. at 117:19-118:2. She indicates that she thought she was going to be arrested and still fears that she will not get another job because of her “criminal record” — though she admits that Magistrate Judge Rapo-port told her that there would be no prejudicial record of Home Depot’s instigated prosecution on record against her. Plaintiffs Response at 6; Plaintiffs Depo. at 108. Plaintiff also contends that she “sustained damage to her reputation as a result of newspaper articles” printed about Home Depot’s prosecution and the instant suit. Complaint at 7, 11, 13. However, in response to questions from Defendant Home Depot’s attorney at her deposition, Plaintiff could not name anyone in whose esteem she was reduced by Home Depot’s prosecution. Plaintiffs Depo. at 150:7-18, 152:4-157:12. Calculating damages for mental anguish and hurt feelings, like all pain and suffering damages, can be a “highly subjective task.” Haines v. Raven Arms, 536 Pa. 452, 458, 640 A.2d 367 (1994). Nonetheless, such damages remain compensatory in nature, i.e. designed to make Plaintiff whole, and “may not be arbitrary, speculative, or punitive.” Id. Avoiding speculation is especially difficult, where, as here, Plaintiff provides no evidence of physical injury or other medical bills (e.g. for psychological counseling) stemming from the events. However, the case law is clear that physical injury and medical bills are not necessary to sustain such compensatory damages in a malicious prosecution case. See, e.g., Shelton v. Evans, 292 Pa.Super. 228, 233-234, 437 A.2d 18 (Pa.Super.1981). In Shelton, the plaintiff had actual damages of only $500, reflecting the cost of defending himself against criminal charges. Id. at 233, 437 A.2d 18. Yet, the court upheld a compensatory damages award of $20,000 for the plaintiffs intangible injuries. Id. at 234-235, 437 A.2d 18. The Shelton case was more extreme than the instant case, in that the Shelton plaintiff was arrested at his home, in front of his wife, and almost went to jail. Id. Plaintiff Hayfield was not arrested. Yet, many of the Shelton facts are parallel to ours: It must have been a nightmare, for he knew he had committed no crime. Moreover, he testified that he had never been arrested before, nor had any criminal charge ever been preferred against him. The jury evidently decided that it had before it an honest, sensitive man, who had suffered a great deal. We cannot say that its decision [to award compensatory damages] was unreasonable. What hurts more than an unjust accusation? What is more shameful than stealing from a friend? Of course, some experiences are more painful than these. Still, the jury’s translation of appellee’s pain into $20,000 does not seem so unsupported that we must set it aside. Shelton, 292 Pa.Super. at 234, 437 A.2d 18. Plaintiffs deposition gives ample evidence that her situation was like that in Shelton, in that Home Depot’s prosecution was unlike anything she had experienced previously and therefore shook her to her foundations, causing her a great deal of fear, stress and emotional upset. See Plaintiffs Depo. at 103:14-104:3 (for three months between arrival of summons and Plaintiffs criminal hearing the matter drove her “a little crazy,” she was “upset constantly” and is still “extremely upset over this.”); 109:18-112:1 (she continues to experience fear of repercussions); 122:9-123:16 (the stress caused Plaintiff difficulty concentrating at work); 141:23-143:8 (Plaintiff, a private person, “was very, very, very, very, very upset” by the newspaper articles); 151:17-152:3 (Plaintiff cries a lot more often in conversations with her friends); 95:11-96:13, 197:1-25 (Plaintiff was on the phone crying to the District Justice’s office and to a Home Depot executive). Following Shelton, we feel Plaintiff may be entitled to substantial compensatory damages. It is for the trier of fact to determine if any such damages are awarded and how much. Bezerra v. National R.R. Passenger Corp., 760 A.2d 56, 62 (Pa.Super.2000); Bloom v. W.C.A.B. (Keystone Pretzel Bakery), 677 A.2d 1314, 1319 (Pa.Cmwlth.1996). It is clear to us, however, that Plaintiffs compensatory losses, which appear to be primarily based upon subjective pain and suffering, are to a legal certainty substantially less than $75,000. These would not, in and of themselves, permit her case to be tried in federal court. Thus, we turn to punitive damages. Penn, 116 F.Supp.2d at 570 (“Punitive damages are included in the amount in controversy calculation.”). The Third Circuit requires that we give particularly close scrutiny to this brand of relief when it will be the primary basis for conferring jurisdiction in our court. Meritcare, 166 F.3d at 222-223 (“Where a claim for punitive damages ‘comprises the bulk of the amount in controversy and may have been colorably asserted solely or primarily for the purpose of conferring jurisdiction, that claim should be given particularly close scrutiny.’ ”) (Internal citations omitted.). We impose punitive damages for torts committed “willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured.” G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d 1127 (1998), citing Thompson v. Swank, 317 Pa. 158, 159, 176 A. 211, 211 (1934). Whereas Plaintiff claims punitive damages against Home Depot for its intentional tort, she does not claim punitive damages and, by definition, none would be available against Artistic for its merely negligent error or its breach of contract. See Complaint at 9, 11, 14; Moran ex rel. Moran v. G. & W. H. Corson, 402 Pa.Super. 101, 586 A.2d 416, 423 (1991), citing Rest.2d of Torts § 500 (punitive damages must involve more than negligence). Defendant Home Depot is potentially eligible for punitive damages because the company continued to criminally prosecute the Plaintiff, even after it had received payment in full plus a penalty. Plaintiff contends that top Defendant management were aware of or constructively aware of her plight and displayed a wanton disregard of her rights and the effects the prosecution might have upon her. Complaint at pp. 7-8. Plaintiffs check bounced as a result of the printing error by Artistic, in which Plaintiff had no responsibility. Plaintiffs Depo. at 24:9-25. Home Depot admits that Plaintiffs replacement check was cashed but that “as the result of an accounting error” she was nonetheless prosecuted. Home Depot SJ Mot. at 2, 6. Plaintiffs deposition indicates that she took numerous actions to remedy the discrepancy, including calling the store, visiting the store (located an hour from her home) and sending a new check including a $20 penalty. Plaintiffs Depo. at 45:13-16, 45:20-46:5, 47:18-48:12, 48:15-49:19, 50:3-13, 54:3-18, 59:19-60:17, 62:20-63:1, 63:11-67:19, 185:16-185:25. Plaintiff spoke on numerous occasions to, among others, a top Home Depot manager at corporate headquarters, Mickey Davis. Id. at 66:20-67:9, 87:11-90:25, 131:5-24, 197:1-25. She begged, even wept on the phone, but the company nonetheless proceeded with its prosecution of Plaintiff. Id. Home Depot’s attorney admitted in his deposition of Plaintiff that her phone bill reflected these calls. Id. at 68:6-14. Thus, Plaintiff has provided ample evidence to sustain a punitive damages claim that Defendant was willful, wanton or reckless in its overzealous prosecution of her. In Pennsylvania, the “function of punitive damages is to deter and punish egregious behavior.” G.J.D., 552 Pa. at 172, 713 A.2d 1127, citing Martin v. Johns-Manville Corp., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985). It is well-established that the amount required to deter and punish a defendant varies according to the worth of the defendant. Mathies v. Mazet, 164 Pa. 580, 30 A. 434 (1894) (“[T]here is a very great difference in a penalty as between a rich man and a poor man. What would be absolutely ruinous to a poor man, worth probably a few hundreds or thousands of dollars, would not amount to anything by way of penalty to a man worth hundreds of thousands of dollars.”). The jury must weigh the defendant’s wealth with “the character of the act” and “the nature and extent of the harm” when calculating an appropriate punitive damages award. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 102, 555 A.2d 800 (1989), invoking Section 908(2) of the Restatement (Second) of Torts. Punitive damages in Pennsylvania need not bear a reasonable relationship to the value of compensatory damages. Kirkbride, 521 Pa. at 103-104, 555 A.2d 800. In a case taken up specifically to determine this question, the Supreme Court of Pennsylvania held in Kirkbride: If the amount of punitive damages must bear a reasonable relationship to the injury suffered, then those damages would not serve as a deterrent. It becomes clear that requiring punitive damages to be reasonably related to compensatory damages would not only usurp the jury’s function of weighing the factors set forth in Section 908 of the Restatement (Second) of Torts, but would also prohibit victims of malicious conduct, who fortuitously were not harmed, from deterring future attacks. Id. The Kirkbride court did note that in rare instances, the amount of punitive damages awarded could be so disproportionate as to shock the conscience of the court. Kirkbride, 521 Pa. at 104, 555 A.2d 800. See generally for a discussion of punitive damages calculation in Pennsylvania after Kirkbride, Friedman v. F.E. Myers Co., 710 F.Supp. 118, 122-124 (E.D.Pa.1989) (holding that a punitive damages award 750 times the compensatory damages award shocked the conscience of the court). In the instant case, if Plaintiff recovered, for the sake of argument, $10,000 compensatory damages — a plausible figure — then a punitive damages award of $64,201.53 would place her over the jurisdictional minimum. Such an award would be approximately 6.5 times her compensatory damages, which would not be an excessive ratio as a matter of law even if the “reasonable relationship” test were still in effect in Pennsylvania. Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90,135, 464 A.2d 1243 (1983). In Delahanty, the First Pennsylvania Bank fraudulently induced the Plaintiffs to enter into the auto leasing business and subsequently sabotaged the Plaintiffs’ business by refusing to extend further financing, calling in the loans previously extended, repossessing the cars in inventory and commencing its own competing automobile leasing business. Delahanty, 318 Pa.Super. at 101, 464 A.2d 1243. In holding an 11.0 ratio of compensatory to punitive damages ($40,000 compensatory and $440,000 punitive) justifiable under the circumstances, the court observed, “This is a defendant with millions of dollars in assets and who has substantial net equity [sic]. A punitive damages award against this defendant of $5,000.00 or even $10,000.00 would be meaningless. The purpose of a punitive damage award is to penalize the defendant for its outrageous conduct, not only for the defendant, but for all similar defendants.” Id. at 135, 464 A.2d 1243. In the case ' at bar, Defendant Home Depot has not just millions, but tens of billions of dollars in assets. Clearly a punitive damages award of $10,000 or $20,000 would do nothing to deter Home Depot’s policy, and those which may exist among other massive corporations, of unlawfully prosecuting consumers for passing bad checks to project a tough company image or collect outstanding debts — even where such consumers have taken every possible action to rectify the situation. If Plaintiffs version of events is believed by the trier of fact, a penalty of over $65,000 may well be appropriate to send a message to Defendant and other would-be offenders. Finally, fees and costs are typically excluded from amount in controversy calculations according to 28 U.S.C. § 1332, and are only generally permitted in such calculations “if such fees are available to successful plaintiffs under [a] statutory cause of action.” Suber, 104 F.3d at 585. Since the case before us involves common law, not statutory claims, we do not consider potential attorney’s fees relating to the instant case in the calculation of the amount in controversy. In conclusion, because of Plaintiffs punitive damages claim against Home Depot, and the aggregation of Artistic and Home Depot as joint actors, Plaintiffs claims against both Defendants more likely than not concern a value exceeding the minimum required $75,000 amount in controversy. We possess jurisdiction to resolve the summary judgment motions before us. B. Summary Judgment The court shall render summary judgment “if the pleadings, depositions, .answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient evi-dentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is '“material” only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party — in this case, Plaintiff. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the mov-ant and may not rest on mere denials. Id. at 321 n. 3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 56(e)); see First Nat’l Bank of Pennsylvania v. Lincoln Nat’l Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. 1. Artistic’s Motion Artistic’s motion does not dispute that it sent Plaintiff erroneously printed checks, but rather, argues that Plaintiff should have checked the account number on her checks before using them. Artistic SJ Brief at 2-3. The motion further suggests that Defendant Home Depot’s prosecution was not the foreseeable result of Artistic’s mistake. Id. at 3^4. In legal terms, Artistic admits negligence and breach of contract but urges consideration of comparative negligence by Plaintiff and co-Defendant Home Depot, disputing whether Plaintiffs damages were proximately caused by Artistic’s actions. Id. at 5-6, 10. For the reasons stated below, we hold that a trier of fact must determine the extent of Artistic’s liability for Plaintiffs damages. Whether Plaintiff exercised reasonable care in appraising her new checks from Artistic, which contained erroneous information, is a clear question of fact for the jury. See e.g., Seewagen v. Vanderkluet, 338 Pa.Super. 534, 542, 488 A.2d 21 (1985) (to determine whether appellants should have discovered the defect or had exercised reasonable care are questions of fact). Reasonable jurors may disagree as to whether Plaintiff, inspecting her name and address on the new checks, should have also inspected the account number and thereby discovered the defect. Artistic would have us find that its conduct in misprinting Plaintiffs checks was so remote from Home Depot’s prosecution of Plaintiff that, as a matter of law, Artistic could not be held liable for the subsequent harm. Artistic SJ Brief at 10. We find no decision in Pennsylvania or the Third Circuit concerning liability in negligence and contract for harms to a customer resulting from a misprinted check. We believe, as a matter of first impression, that a negligent check printer can be liable for a plaintiffs pecuniary and non-pecuniary damages resulting from prosecutions which stem from her use of the misprinted checks, even where she alleges malicious prosecution against the prosecuting party. It is up to the trier of fact to decide whether the check printer’s role in the eventual prosecution is too attenuated to establish liability for consequential damages resulting therefrom. We base our decision upon similar cases resolved by other jurisdictions and upon parallel forms of reasoning in Third Circuit and Pennsylvania cases concerning the Uniform Commercial Code section regarding wrongful dishonor of a check by a bank. In Morris v. Deluxe Check Printers, Inc., the plaintiffs alleged breach of contract and breach of warranty against a check printer that included erroneous routing symbols on the plaintiffs’ checks. 395 So.2d 927 (La.App.2d Cir.1981). The court held that assuming the defendant check printer was without fraudulent intent, plaintiffs would be entitled to damages contemplated or reasonably supposed to have entered into the contemplation at the parties at the time of the check printing contract. Id. at 931. It was reasonably foreseeable, the court found, that the plaintiffs would not detect an error in routing symbols or numbers and that checks issued by the plaintiffs would be returned unpaid. Id. It was therefore also reasonably foreseeable that the plaintiffs would sustain injury to their credit rating; plaintiffs were entitled to